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ARCHIVED - Chair-Initiated Complaint into the Shooting Death of Kevin St. Arnaud in Vanderhoof, British Columbia and into the Adequacy of the Subsequent RCMP Investigation

ARCHIVED - Chair-Initiated Complaint into the Shooting Death of Kevin St. Arnaud in Vanderhoof, British Columbia and into the Adequacy of the Subsequent RCMP Investigation

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Executive Summary

Introduction

This report examines one of the most serious incidents that can engage the public's attention; the use of force by a police officer that results in the death of an individual.

I have examined in detail the facts of this case with a view to ascertaining:

whether Constable Sheremetta was justified in his use of deadly force; and,

whether the "E" Division North District Major Crime Unit conducted an adequate investigation of the shooting.

For reasons that will be described in more detail below, the RCMP's investigation of the circumstances surrounding the death of Mr. St. Arnaud fell below an acceptable standard. This report will also assess the circumstances surrounding the use of force by the police that caused Mr. St. Arnaud's death and the number of expert reports, physical evidence and statements proffered in relation thereto.

Commission's Review of the Facts

On December 19, 2004 at approximately 12:50 a.m., Mr. Kevin St. Arnaud broke into a pharmacy in a mall in Vanderhoof, British Columbia. In response to the break-in alarm, Constable Ryan Sheremetta and Constable Colleen Erickson, both members of the Vanderhoof RCMP, attended in separate police vehicles. Constable Sheremetta observed Mr. St. Arnaud running from the mall and pursued him in his police vehicle to the Vanderhoof curling rink at which point he left his police vehicle and continued the pursuit on foot.

Constable Sheremetta followed Mr. St. Arnaud onto a soccer field while all the time yelling commands for Mr. St. Arnaud to stop. Mr. St. Arnaud eventually stopped, turned around and came back towards Constable Sheremetta. Mr. St. Arnaud continued to advance upon Constable Sheremetta, who later recounted that he stepped backwards but slipped and fell on his back and from this position shot Mr. St. Arnaud three times in the chest.

Constable Erickson, who was in a police vehicle, had come around from the curling rink and was driving beside the tennis court and soccer field when she heard yelling, observed Mr. St. Arnaud "kind of charging back at Constable Sheremetta" and observed Constable Sheremetta, while standing in a police shooting stance, shoot Mr. St. Arnaud twice from a distance of approximately ten feet.

The subsequent autopsy confirmed that Mr. St. Arnaud was shot, in fact, three times. The contradictory descriptions of the position from which Constable Sheremetta shot Mr. St. Arnaud are assessed in detail in the full report.

Key Issues Addressed in This Report

Whether a member of the RCMP improperly discharged his firearm during the incident; and

Whether members of the RCMP conducted an adequate investigation into the death of Mr. St. Arnaud.

1. Discharge of a Firearm

Subsection 25(1) of the Criminal Code authorizes a police officer who is acting in the administration or enforcement of the law to use as much force as is necessary for that purpose. Section 34(2) of the Criminal Code authorizes any person who is unlawfully assaulted to use force that causes death or grievous bodily harm in self-defence to repel the assault. To rely on this protection, the person must have a reasonable apprehension of death or grievous bodily harm and must also believe that he cannot otherwise preserve himself from death or grievous bodily harm.

Prior to utilizing force, it is incumbent upon a peace officer to perform a risk assessment, which is accompanied by a consideration of the situational factors specific to each incident. Situational factors would include weather conditions, subject size in relation to the member, presence of weapons, number of subjects and of police, as well as a host of other incident-specific considerations. In addition, RCMP members are trained to utilize one level of intervention higher than the demonstrated resistance level of the person they are dealing with.

On the night in question, Constable Sheremetta knew that an alarm had been activated at the pharmacy and upon arrival learned that there was indeed at least one male suspect still within the mall where the pharmacy was located. As the pursuit outside the mall unfolded, Constable Sheremetta related that Mr. St. Arnaud repeatedly looked back at him and continued to ignore his commands to stop. Most importantly, he observed Mr. St. Arnaud running one-handed, in other words keeping his right hand in his pocket. Constable Sheremetta expressed concern about not knowing where his back-up, Constable Erickson, was and during the final portions of the interaction he was keenly aware that he had to deal with Mr. St. Arnaud alone, at night-in the dark, on an isolated soccer field.

The accounts of Constable Sheremetta and Constable Erickson, as the only two witnesses to the shooting, have been examined in order to determine the actual unfolding of events.

Regrettably, eye-witness accounts of events are not always reliable. In this case, Constable Sheremetta's perceptions were likely affected by his heightened state of anxiety. He misperceived Mr. St. Arnaud as having jumped off the roof of the mall and he misjudged Mr. St. Arnaud to be about six feet tall when in fact he was two and one-half inches shorter. Constable Erickson's recollection of events was not perfect either. She stated that she heard only two shots and saw only two muzzle flashes. The next closest civilian observer, Mr. Klassen, also maintained that he only heard two shots. While this aspect of her observations proved to be incorrect, she recounted Mr. St. Arnaud's charging back towards Constable Sheremetta in much the same way as Mr. Klassen and Constable Sheremetta himself. Constable Erickson also had an unobstructed view of the participants who were located in front and to the left of where she was driving.

Witness Recollections and Evidence

The recountings of the many witnesses interviewed in this case reflect the frailties of human powers of observation and recollection. Some of their testimony, given without any improper motive, is contradicted by other witnesses or the physical evidence.

One of the key challenges in this case is the apparent contradiction between Constable Sheremetta and Constable Erickson as to the position from which Constable Sheremetta shot Mr. St. Arnaud. With the exception of the expert testimony of Dr. Gail Thornton and Dr. James McNaughton, the fruits of the investigation conducted by the RCMP's North District Major Crime Unit are of little assistance.

What evidence that I have found to be relevant and reliable leads me to find that Constable Sheremetta while on the soccer field, having fallen down, regained his feet and fired from a standing position as observed by Constable Erickson. My finding is based upon Constable Sheremetta's assertion in his first statement, as confirmed by the depression in the snow as identified in the forensic investigation of Sergeant Doll and Corporal Beach and the observation of the ambulance attendants. The ground was universally described as being slippery and the lighting at the time was poor.

While it initially looked like Mr. St. Arnaud was going to surrender, this quickly changed when he lowered his hands and began charging toward Constable Sheremetta. Mr. St. Arnaud ignored Constable Sheremetta's shouted commands to stop and get down on his knees and responded by telling Constable Sheremetta that "you're going to have to shoot me mother fucker." By the time that Mr. St. Arnaud began approaching Constable Sheremetta he was at least combative. I find that his words and actions demonstrated his intent to assault Constable Sheremetta and escape custody.

The key issue is whether Mr. St. Arnaud posed a threat of grievous bodily harm or death. The critical observation noted by Constable Sheremetta was Mr. St. Arnaud's repeated placement of his hand in his pocket. I find that based upon a consideration of all the evidence, these actions would be wholly consistent with Mr. St. Arnaud trying to safeguard the drugs that he had stolen from the pharmacy.

It must also be remembered that Mr. St. Arnaud's blood alcohol level and various witnesses support a finding that he suffered from a significant degree of intoxication. Mr. St. Arnaud's utterances and facial expressions also demonstrated aggression and his words could be perceived as meaning that he contemplated a fight that would entail grievous bodily harm or death. During his duty to account statement, Constable Sheremetta stated that these actions caused him to fear for his life. Furthermore, Mr. St. Arnaud had already instigated one physical altercation earlier in the evening with an individual significantly larger than he was. In fact, the bar doorman who broke up the fight estimated that the other combatant outweighed Mr. St. Arnaud by approximately one hundred pounds.

By all accounts Mr. St. Arnaud advanced upon Constable Sheremetta while the latter had his firearm pointed directly at him. At the point he was shot, Mr. St. Arnaud was only five feet away from Constable Sheremetta. This highlights the dynamic nature of this incident. The five-foot distance between Mr. St. Arnaud and Constable Sheremetta could have been covered in a fraction of a second. This reality did not leave time for sober second thought. Constable Sheremetta was called upon to make a decision in that instant.

Having regard to all the evidence, I find Constable Sheremetta's apprehension that Mr. St. Arnaud posed a threat of grievous bodily harm or death to be reasonable.

Finding Regarding the Initial Interaction

The members entered into their interaction with Mr. St. Arnaud lawfully and were duty bound to do so.

Finding Regarding Use of Force

Constable Sheremetta shot Mr. St. Arnaud in self-defence after reasonably perceiving that Mr. St. Arnaud posed a threat of grievous bodily harm or death and believing that he could not otherwise preserve himself from grievous bodily harm or death other than by using deadly force.

2. Adequacy of the RCMP Investigation

The shooting was investigated by the RCMP's "E" Division North District Major Crime Unit (MCU) based in Prince George.

An adequate investigation in a major case such as a police-involved shooting resulting in death is an extremely complex undertaking and will include: securing and preserving the scene; interviewing all known witnesses and identifying other witnesses to be interviewed who may have material evidence about the event; examining the backgrounds of both the deceased and the RCMP member; obtaining and processing relevant forensic evidence including photographic evidence, non-DNA physical evidence, DNA-related evidence and evidence related to the firearm used in the shooting; canvassing surrounding areas for any further information about the event that may be relevant; and utilizing appropriate experts. The RCMP's investigation into the death of Mr. St. Arnaud similarly included a number of the tasks enumerated above.

Scene Security

From the outset, it is necessary for first responders to rigorously adhere to the fundamental principles governing all investigations. Securing the scene where the shooting took place should have been a priority; as in any criminal investigation, the preservation of physical evidence is a critical task.

Findings

Constable Erickson failed to ensure scene security at the soccer field immediately following the shooting.

Staff Sergeant Kowalewich should have removed Constable Erickson from the scene at the earliest opportunity, as she was a key eyewitness to the shooting.

Staff Sergeant Kowalewich should have removed Constable Erickson from the scene at the earliest opportunity, to avoid any real or perceived bias, given her work relationship with Constable Sheremetta.

Staff Sergeant Kowalewich failed to ensure scene security at the mall from the earliest opportunity.

Scene Preservation

The efforts of the officers at the soccer field, during the failed attempt to erect a tent, resulted in the contamination of the scene by various officers' footprints. A significant portion of the prints between an area containing an impression in the snow to some distance beyond where Mr. St. Arnaud's body lay was obliterated. This impression in the snow was considered by investigators to be consistent with the location and marks that would be expected if Constable Sheremetta had fallen, as he indicated in his duty to account statement. This area was key to subsequent efforts to analyze the movements of Constable Sheremetta and Mr. St. Arnaud leading up to the fatal shooting.

Although the scene ended up being poorly preserved, I find that this was largely due to the deteriorating weather conditions and poor communication between the investigative team and Sergeant Doll and Corporal Beach.

It seems reasonable that scene preservation may have been treated differently if Sergeant Doll and Corporal Beach were aware that Constable Sheremetta may have shot Mr. St. Arnaud from a standing position and the potential significance of that area of the crime scene.

Findings

Sergeant Krebs provided the Forensic Identification Section members with only one of two possible versions of the shooting, which may have resulted in a failure to recognize the significance of that portion of the scene, which was ultimately contaminated by the footprints of other officers.

The Forensic Identification Section failed to seize blood samples from the snow adjacent to Mr. St. Arnaud.

Impartiality of the Investigation

In many instances when the police investigate cases of a police-involved shooting, concerns about the impartiality of such an investigation are raised. Actions taken by the RCMP members have been assessed against the "impartiality criterion" that forms the framework of the Commission's Independent Observer Program. That criterion measures the appropriateness of the management structure and reporting structure, whether the investigative team's response to the incident was appropriate and proportionate, the timelines of the response, and lastly whether the members conducted themselves in a professional manner during the course of the investigation.

Findings

Sergeant Krebs should have determined the availability of qualified and experienced non-detachment members to take statements from Constables Sheremetta and Erickson.

Corporal MacLellan failed to adequately prepare for the interview of Constable Sheremetta by first interviewing Constable Erickson.

Corporal MacLellan failed to identify the purpose of his interview of Constable Sheremetta and in particular to define the statement as a duty to account statement.

Corporal MacLellan asked leading questions during the interviews of Constable Sheremetta and Constable Erickson which, although not appropriate, did not affect the reliability of the statements.

Corporal MacLellan failed to re-interview Constable Sheremetta once he discovered the discrepancy between Constable Sheremetta's and Constable Erickson's versions of the shooting.

Sergeant Krebs was clearly leading the MCU when the investigation began and should have ensured that Vanderhoof Detachment personnel were aware of the limitations on their roles in the investigation. There is no evidence to indicate that he limited the role of non-MCU members in the investigation, the need for which was enhanced by the absence of the MCU from Vanderhoof for significant periods of time.

Finding

Sergeant Krebs failed to exercise effective control over Corporal MacLellan's role in the investigation after initially using him to take Constable Sheremetta's duty to account statement.

Recommendation

The RCMP should act forthwith to implement policy that provides direction to on-scene RCMP members in major cases involving investigation of police conduct, i.e. situations where the police investigate the police, including the need to ensure real and perceived impartiality.

Experts

As with most homicide investigations, the investigation into the death of Mr. St. Arnaud included the request for and utilization of a number of expert reports. The Commission has considered each such report and has identified where they are helpful and where they fall short of expectations.

Bloodstain Pattern Analysis Evidence

Sergeant Gallant made erroneous assumptions in arriving at conclusions not scientifically supported by the evidence.

Sergeant Gallant demonstrated tunnel vision by his reluctance to modify his conclusions when faced with additional information that called his original conclusions into question.

Use of Force Expert Report

Findings

The selection process for use of force experts gives rise to the possibility of real or perceived bias.

There was an excessive delay in appointing the use of force expert due to insufficient resources.

The RCMP failed to appoint a use of force expert with sufficient experience to handle a serious case dealing with a police-involved homicide.

Recommendations

The RCMP should train a sufficiently large pool of full-time use of force experts to ensure qualified and experienced experts are available in a timely fashion to deal with major cases.

The RCMP should streamline its appointment process for use of force experts and ensure transparency by establishing a set protocol for appointments.

The Investigational Timeline

A review of the investigation reveals that the brunt of the field investigation, including interviews and forensic seizures, was completed over the first 72 hours following the shooting. The bulk of physical evidence seized was also forwarded for analysis (toxicological, etc.) within that 72-hour period.

Expert opinions were sought in a timely fashion except that there was a significant delay of more than five months in obtaining a use of force expert. This type of expertise was an important area for the investigation and it should have been completed in a more expeditious manner. The RCMP's explanation for this cites resource shortfalls, which are now being addressed.

Finding

The investigation was carried out in a timely manner except for the delay in selecting a use of force expert.

Major Case Management

None of the members involved in this investigation were accredited Major Case Management members as called for in RCMP policy. The RCMP has explained that at the time of the investigation, "E" Division certification procedures were less than a year old and the training process was ongoing. This meant that a full complement of accredited individuals was not yet available to conduct investigations. That shortfall has now been remedied and there are more accredited officers in "E" Division than investigative positions, which should ensure adequate availability in future cases. Accreditation issues aside, there were a number of failings in the application of the Major Case Management model in this case.

Findings

The Major Case Management model was not properly applied in this investigation:

the team members were not accredited, as required by policy;

Inspector Hopkins and Staff Sergeant Flath in their role as Team Commander did not exercise overall control or assume responsibility and accountability for the direction, speed and flow of the case, as required by policy;

after using Corporal MacLellan to assist in the investigation, in a limited capacity, Sergeant Krebs failed to restrict Corporal MacLellan's subsequent involvement;

Inspector Hopkins and Superintendent Killaly failed to keep notes of their involvement, as required by policy;

Superintendent Killaly's and Inspector Van De Walle's involvement in the investigation was not clearly defined by the Major Case Management policy and helped create ambiguity as to the operational line management responsibility for the investigation; and

the investigative team failed to conduct a critical debrief, as required by policy.

Recommendation

The Major Case Management policy should be modified to clarify the distinction between those managers and supervisors providing operational decision-making and guidance and those providing administrative support.

Application of the principles that constitute the Major Case Management Model and adoption and implementation of the recommendations found in the Commission's report in respect of the death of Mr. Ian Bush would be a good point of departure for the RCMP as it seeks to restore and maintain the public's confidence in this sensitive area.

Conclusion

The use of lethal force by a police officer raises a number of concerns for the public particularly so when the investigation of such an event is carried out by the same police agency as that of the subject police officer. The shooting of Mr. St. Arnaud and the subsequent investigation conducted by the RCMP's North District Major Crime Unit is such a case. I have endeavoured to provide a fair and objective assessment of the shooting of Mr. St. Arnaud and the subsequent investigation and have made recommendations with an eye to effecting positive change. In so doing, I am cognizant that this incident was investigated prior to my recommendations made in the context of another tragic event-that of the death of Mr. Ian Bush-and in that regard many improvements have already been instituted by the RCMP. Hopefully this report will be of assistance to the RCMP to continue to improve the manner in which these events are investigated.

Introduction

There has been an ongoing expression of concern by members of the public concerning the ability of the police generally to impartially investigate serious allegations of wrongdoing by fellow police officers. These expressions of concern also touch the RCMP, which is Canada's largest police service and which provides policing for the greater portion of the residents of British Columbia.

In recognition of this serious concern, the Commission for Public Complaints Against the RCMP (the Commission) will on occasion exercise its authority on behalf of the public, to examine in depth the facts that give rise to the public's concern as well as the adequacy of the RCMP's investigation of the events in question. This report examines one of the most serious incidents that can engage the public's attention; the use of force by a police officer that results in the death of an individual. The Commission has previously examined and publically released a report together with numerous recommendations dealing with a police shooting that resulted in the death of Mr. Ian Bush.1

Both the death of Mr. Kevin St. Arnaud and the subsequent investigation of the circumstances that led to his death took place prior to the release of the Commission's Final Report concerning the death of Mr. Ian Bush together with its recommendations as to the best practices to follow in such member-involved shootings. For reasons that will be more fulsomely described below, the RCMP's investigation of the circumstances surrounding the death of Mr. St. Arnaud fell below an acceptable standard and will, accordingly, leave members of the public with a sense of disquiet as to the ability of the police to ensure that such events are investigated with the level of professionalism that the public has rightly come to expect.

Application in practice of the principles that constitute the Major Case Management Model and adoption and implementation of the recommendations found in the Commission's report in respect of the death of Mr. Ian Bush would be a good point of departure for the RCMP as it seeks to restore and maintain the public's confidence in this sensitive area.

Overview

On December 19, 2004 at approximately 12:50 a.m., Mr. Kevin St. Arnaud broke into a pharmacy in a mall in Vanderhoof, British Columbia.2 Constable Ryan Sheremetta, a member of the Vanderhoof RCMP, responded to the break-in alarm. Constable Colleen Erickson, also with the Vanderhoof RCMP, responded to the alarm in a separate police vehicle. Constable Sheremetta observed Mr. St. Arnaud running from the mall and pursued him in his police vehicle. Constable Sheremetta exited his police vehicle near the Vanderhoof curling rink and continued to pursue Mr. St. Arnaud on foot.

Constable Sheremetta followed Mr. St. Arnaud onto a soccer field while all the time yelling commands for Mr. St. Arnaud to stop. Mr. St. Arnaud eventually stopped, turned around and came back towards Constable Sheremetta. Mr. St. Arnaud continued to advance upon Constable Sheremetta, who later recounted that he stepped backwards but slipped and fell on his back. It was from this position that he shot Mr. St. Arnaud three times in the chest. Constable Erickson,3 who was in a police vehicle, had come around from the curling rink and was driving beside the tennis court and soccer field when she heard yelling, observed

Mr. St. Arnaud "kind of charging back at Constable Sheremetta" and observed Constable Sheremetta, while standing in a police shooting stance,4 shoot Mr. St. Arnaud twice from a distance of approximately ten feet. The subsequent autopsy confirmed that Mr. St. Arnaud was shot, in fact, three times.

The shooting was investigated by the RCMP's "E" Division North District Major Crime Unit (MCU) based in Prince George. The MCU submitted a Report to Crown Counsel to the Regional Crown Counsel on September 12, 2005. On February 15, 2006 Crown Counsel determined that there was no substantial likelihood of conviction and that Constable Sheremetta would not be charged with any offence arising from the shooting of Mr. St. Arnaud.

On March 15, 2006, following the Crown's decision not to proceed with criminal charges, as the Chair of the Commission, I initiated a complaint pursuant to subsection 45.37(1) of the RCMP Act, in which I raised two issues: Firstly, whether members of the RCMP improperly entered into a situation with Mr. St. Arnaud that resulted in his death and, secondly, whether a member of the RCMP improperly discharged his firearm in the incident. On April 26, 2007, I amended the complaint after the conclusion of the inquest into Mr. St. Arnaud's death. The amended complaint (Appendix C), also questioned whether members of the RCMP failed to conduct an adequate investigation into the death of Mr. St. Arnaud.

On August 4, 2006, the RCMP forwarded the RCMP Commissioner's Notice of Direction (Appendix D) terminating the investigation into my complaint pursuant to paragraph 45.36(5)(c) of the RCMP Act.The Notice of Direction stated that it was not reasonably practicable to investigate the complaint and linked this decision to the fact that a coroner's inquest into Mr. St. Arnaud's death was in the investigative stage.
The Commission responded with a report (Appendix E) dated September 28, 2006, which did not address the rationale advanced by the RCMP but, rather, held that the RCMP Commissioner had exceeded his jurisdiction since paragraph 45.36(5)(c) of the RCMP Act does not apply to complaints initiated by the Commission Chair pursuant to subsection 45.37(1) of the Act. I then directed that the RCMP immediately commence an investigation.

Accordingly, as required by the RCMP Act, the complaint was investigated by the RCMP. On completion of the investigation the RCMP Commissioner (or his delegate) shall send his Final Report to the complainant summarizing the results of the investigation and any action taken to resolve the complaint. In this case, the Commissioner's Final Report dated June 26, 2008 (Appendix F) informed me of his findings: that RCMP members properly responded to the break-in at the pharmacy; "[...] that Cst. Sheremetta's actions were justified given his reasonable belief that he would suffer grievous bodily harm or death [...]"; and "[...] other than the concerns identified with the Blood Stand [sic Stain] analysis, I find that members of the RCMP conducted an adequate investigation into the death of Mr. St. Arnaud and as such I do not support this allegation."

Pursuant to subsection 45.42(1) of the RCMP Act, the Commission is required to review any complaint initiated pursuant to subsection 45.37(1) of the Act. This report constitutes my review of the RCMP's investigation into the issues raised in my complaint, and the associated findings and recommendations. A summary of my findings and recommendations can be found in Appendix G.

Commission's Review of the Facts Surrounding the Events

It is important to note that the Commission for Public Complaints Against the RCMP is an agency of the federal government, distinct and independent from the RCMP. When reviewing a Chair-initiated complaint, the Commission does not act as an advocate either for the complainant or for RCMP members. As Chair of the Commission, my role is to reach conclusions after an objective examination of the evidence and, where judged appropriate, to make recommendations that focus on steps that the RCMP can take to improve or correct conduct by RCMP members. In addition, one of the primary objectives of the Commission is to ensure the impartiality and integrity of RCMP investigations involving its members.

My findings, as detailed below, are based on a careful examination of the following materials: the RCMP's original investigation into the death of Mr. Kevin St. Arnaud, including the original Report to Crown Counsel; the RCMP's responses to the Commission's questions and concerns identified through the Chair-initiated complaint process; the RCMP's letter of disposition; and applicable law and RCMP policy. I am grateful for the assistance of a former senior member of the Vancouver Police Department who assisted in reviewing the issues involving the adequacy of the RCMP's investigation.

A coroner's inquest into the death of Mr. St. Arnaud was held in Vanderhoof, British Columbia on January 18 and 19, 2007 and from January 23 to 26, 2007. The purpose of an inquest is to ascertain how, when, where and by what means the deceased died. Although the mandate of an inquest is quite limited, I considered the evidence heard to be an important part of the fact-finding process related to Mr. St. Arnaud's death. It is for this reason that a representative from the Commission was present for all testimony given during the inquest and the Commission has reviewed the witness transcripts from the inquest.

To better understand the physical location where the incident occurred, the Commission's representative viewed the location of the shooting as well as the route taken by Mr. St. Arnaud and the location of witnesses present in the vicinity at the time of the shooting.

To ensure the accuracy of the times noted in the report, the Commission's representative listened to the original RCMP North District Operational Communications Centre audio recordings played on the RCMP's proprietary software and viewed the software's contemporaneous display of the continuous time readout for the audio recordings.

It should be noted that the RCMP provided unfettered access to all materials contained in the original investigative file and to all materials identified as part of the Chair-initiated complaint investigation. To assist with reviewing the original criminal investigation, the RCMP arranged a briefing for me and senior members of the Commission at "E" Division headquarters.

Issues: Whether members of the RCMP improperly entered into a situation with Mr. St. Arnaud that resulted in his death; whether a member of the RCMP improperly discharged his firearm in the incident; and whether members of the RCMP failed to conduct an adequate and independent investigation into the death of Mr. St. Arnaud.

Background

Mr. St. Arnaud lived in the town of Vanderhoof, British Columbia, which is located approximately 100 kilometres west of Prince George, British Columbia, and has a population of approximately 4,500 people. Mr. St. Arnaud worked as a welder for a local fabrication business. He was twenty-nine (29) years old in December 2004, was 176 centimetres (5 feet 9½ inches) tall and weighed approximately 86 kilograms (190 pounds).5

Constable Ryan Sheremetta worked as an RCMP member in Vanderhoof. He graduated from the RCMP's six (6)-month-long Cadet Training at Depot Division on January 20, 2003 and immediately started work as an RCMP member at the Vanderhoof RCMP Detachment. RCMP members are required to complete six (6) months of field training when they first start working as police officers. Constable Sheremetta completed his field training on July 20, 2003 and commenced working as a regular member of the RCMP in Vanderhoof.
Constable Ryan Sheremetta was twenty-four (24) years old in December 2004. He was 179 centimetres (5 foot 10½ inches) tall and weighed approximately 79 kilograms (175 pounds).6 Constable Sheremetta did not have any prior experience as a peace officer but he possessed a two-year post-secondary college diploma in "Police Foundations" from Ontario.

Facts

The following account of events flows from witness statements and testimony provided during the initial police investigation, the coroner's inquest and the additional investigation carried out pursuant to my Chair-initiated complaint. I put these facts forward, as they are either undisputed or because, on the preponderance of evidence, I accept them as a reliable version of what transpired. The reader will note that there are gaps in the depiction of what occurred on that night. These gaps are attributable to a myriad of factors including the frailty of human powers of observation and recollection, the adverse environmental conditions that existed at the time of the shooting, the uneven quality of forensic evidence and expert testimony, and most importantly significant reservations concerning the credibility of statements made by Constable Sheremetta where the veracity of such statements cannot otherwise be independently corroborated.

The events of December 18, 2004

On the evening of December 18, 2004, Mr. St. Arnaud and his girlfriend, Ms. Rebecca Gingera, attended a work-related Christmas party at a local pub in Vanderhoof. Mr. St. Arnaud was observed by various patrons to consume a significant amount of alcohol. Mr. St. Arnaud got into a disagreement with his girlfriend. She subsequently left the pub. According to one witness, Mr. St. Arnaud was upset because of this disagreement and stated that he wanted to "get high." Mr. St. Arnaud was subsequently escorted from the pub shortly before midnight after he had initiated a physical confrontation with another patron.

Mr. St. Arnaud's girlfriend had gone to a mutual friend's residence, which Mr. St. Arnaud also attended sometime after having been escorted from the pub. Mr. St. Arnaud was very intoxicated7 and according to his girlfriend he left the residence after having been there a short time. Mr. St. Arnaud subsequently went to another residence looking for someone who no longer lived there. According to the current resident, Mr. Michael Bulkley, while talking with Mr. St. Arnaud he formed the belief that Mr. St. Arnaud was intoxicated and he noticed vomit on his porch. The following morning he discovered that somebody had also defecated on his porch. Mr. Bulkley reported that Mr. St. Arnaud was obviously intoxicated but that he had no difficulty walking as he left the residence.

Constable Sheremetta was working on the evening of December 18, 2004. Constable Colleen Erickson, a twenty-four-year veteran with the RCMP, was also on duty. They were the only two members on duty in Vanderhoof that night and both were in uniform. They were working a shift from 5:00 p.m. to 3:00 a.m. This was Constable Sheremetta's last of three night shifts that had followed two day shifts.

The Intrusion alarm at the Vanderhoof Rexall Pharmacy

A Greyhound bus was scheduled to stop at the Vanderhoof Co-op Mall at 12:30 a.m. that night and there were people waiting for the bus who witnessed some of the events that followed. Mr. John Thiessen had driven to the mall to drop off a passenger for the bus. He arrived at about midnight but since the bus was late he continued to wait. The bus arrived shortly before 1:00 a.m. During that time he witnessed a man drop down from the ceiling of the Rexall Pharmacy located in the mall. Originally he thought the man might be performing maintenance but after a few minutes he became suspicious because there was no ladder and he considered calling the police.

Shortly before 1:00 a.m., the RCMP received notice of an intrusion alarm having been activated at the Rexall Pharmacy. Constable Sheremetta responded to the alarm in his police SUV. Constable Erickson also responded in her police truck. Prior to arriving at the scene, Constable Erickson noticed some people yelling and making noise and drove by to take a look. She then continued on to the pharmacy and believed that she arrived within a minute or so of Constable Sheremetta. Further information was received that the intrusion alarm had come from the drug dispensary inside the pharmacy. Upon Constable Sheremetta's arrival, he first drove to the back of the building to ensure that there was no vehicle waiting to be used for a getaway. After returning to the front of the pharmacy, he spoke with Mr. Thiessen, who advised him that he had seen someone drop down from the ceiling inside the pharmacy. Constable Sheremetta radioed this information to Constable Erickson, who was still on her way.

Mr. Abe Klassen was also waiting at the mall to pick up a delivery from the bus. Just as the bus was arriving, he was approached by Mr. Thiessen who told him that there had been a break-in at the pharmacy. Mr. Klassen noticed the police presence and decided that he would drive toward Stewart Street so he could have a better view of the mall.

Constable Erickson arrived and stopped in front of the mall while Constable Sheremetta went to the intersection of Bute Avenue and Stewart Street8 where he could see the side and back of the building. Constable Erickson exited her vehicle and took a look inside the pharmacy where she briefly saw somebody crouched down. This individual was later identified as Mr. St. Arnaud.9 She noted that the person held a white bag in his hand. Constable Erickson lost sight of the individual and returned to her police truck.

She then spoke to Mr. Thiessen and asked him to keep a look out. Constable Erickson maintained watch at the exterior of the pharmacy for a short time, until Mr. Thiessen advised her that he had seen Mr. St. Arnaud running through the mall away from the pharmacy.10 Constable Thomas Davies of the Fraser Lake RCMP Detachment was aware of these events and called for a police dog to assist with tracking. Constable Erickson advised Constable Sheremetta who returned to the front of the mall to find out in which direction Mr. St. Arnaud was running. Constable Erickson recalled telling Constable Sheremetta that she would watch the front and he should go around back, at which point Constable Sheremetta drove his SUV around the building, eventually parking his vehicle where he had a view of the back of the building. He turned off all the lights on the police vehicle and rolled the windows down.

Constable Erickson took a drive down the front of the building where she would have a better vantage point to observe the building. It was at this point that Mrs. Janice Biggin-Pound, the property representative, arrived on the scene after being called by the alarm company. Her husband, Mr. Dennis Biggin-Pound, accompanied her and the two exited their vehicle and approached the pharmacy intending to deactivate the alarm and check the store. Just as Mrs. Biggin-Pound began disarming the alarm, Constable Erickson drove back to the doors of the pharmacy, exited her vehicle and told Mrs. Biggin-Pound to hold off because someone was still inside. The Biggin-Pounds returned to their vehicle and waited.

A few minutes later Constable Sheremetta observed Mr. St. Arnaud, whom he believed had jumped down from the roof of the mall close to where he had parked his vehicle. Constable Sheremetta was parked on a side of the fence that prevented him from pursuing the suspect.

At 1:08:10 a.m., Constable Sheremetta radioed Constable Erickson that he had just seen Mr. St. Arnaud jump off the roof and head toward Stewart Street. He began driving around an adjacent building and onto Stewart Street, where he encountered Mr. St. Arnaud running. Constable Sheremetta recalled that the parking lot and roads were very slippery due to icy conditions. While in his SUV with emergency lights activated, Constable Sheremetta pursued Mr. St. Arnaud onto Stewart Street. Mr. Klassen recalled seeing Mr. St. Arnaud running from behind the pharmacy, across Stewart Street toward the courthouse. Immediately thereafter he noticed a police vehicle on Stewart Street. Constable Sheremetta stated that at this point he yelled out his open window for Mr. St. Arnaud to stop but Mr. St. Arnaud continued to flee.

The Pursuit

Mr. Dennis Nooski and Ms. Sylvia Isaac, two passengers on the Greyhound bus, exited the bus at the mall at approximately 1:00 a.m. and started walking west on Stewart Street and then north on Burrard Avenue toward Ms. Isaac's apartment. Ms. Isaac testified that she arrived at 1:05 a.m. She recalled seeing people running down the alley.11 She saw a female member drive up and shout out asking, "[...] where did he go?" She then saw the female member drive toward the courthouse.

Constable Erickson stated that she ran back to her vehicle and proceeded to Stewart Street. She then received a message that Mr. St. Arnaud was heading behind the courthouse so she drove east on Stewart Street and turned north on Bute Avenue. She received another call from Constable Sheremetta telling her to go to the other side of the curling rink.

Constable Sheremetta followed Mr. St. Arnaud between the courthouse and curling rink. He was able to block Mr. St. Arnaud's path of flight by stopping his vehicle in front of him at an angle. As he exited his police vehicle Constable Sheremetta momentarily lost sight of Mr. St. Arnaud. He later stated that he believed that Mr. St. Arnaud slipped on the ice and fell.

As he exited his police vehicle Constable Sheremetta also slipped on the ice and while struggling to keep his balance lost his cell phone, which broke into pieces. As he rounded the rear of his police vehicle, he drew his gun and gave chase on foot. Mr. St. Arnaud ran back around the front of the curling rink. Constable Sheremetta yelled repeatedly at Mr. St. Arnaud: "Police! Stop!"

Constable Sheremetta stated that Mr. St. Arnaud did not stop and continued around the front of the curling rink. According to Constable Sheremetta, Mr. St. Arnaud started running with his right hand in his jacket pocket and kept looking back at him.

While Constable Erickson was driving on the west side of the courthouse she received a radio message from Constable Sheremetta saying, "Other side Colleen, on the curling rink." She responded by driving between the courthouse and the curling rink in a southerly direction past Constable Sheremetta's stopped vehicle and back onto Stewart Street. She turned east onto Stewart Street, as Constable Sheremetta had radioed that he was proceeding through the tennis courts and then onto the soccer field.

Mr. Klassen testified that he started to drive toward the scene to assist the officer apprehend Mr. St. Arnaud. He noticed that the police officer was pursuing Mr. St. Arnaud on foot. As he approached the area of the courthouse and curling rink, Mr. Klassen heard the member yell, "Stop! Stop! Police!" Just as Mr. Klassen drove by that area, he watched Mr. St. Arnaud run into the tennis court area followed by the police officer. He then watched the member chase Mr. St. Arnaud onto the soccer field.

Constable Sheremetta stated that he chased Mr. St. Arnaud through the tennis court and onto the soccer field that adjoined the curling rink. Constable Sheremetta re-holstered his gun as he ran through the tennis court. Constable Sheremetta stated that he did this because he felt that he might slip and fall. Constable Sheremetta continued to give radio updates to Constable Erickson as he pursued Mr. St. Arnaud. At 1:09:28 a.m., shortly after exiting the tennis court and entering the soccer field, Constable Sheremetta advised Constable Erickson by radio that he was "going through the field, towards the arena." Constable Sheremetta reported that he continued to call out for Mr. St. Arnaud to stop.

The Shooting of Mr. St. Arnaud

Constable Sheremetta entered the field matching Mr. St. Arnaud's pace, with the intent that Constable Erickson would be able to help box Mr. St. Arnaud in and that he would surrender. However, after a brief run through the field, Mr. St. Arnaud stopped and raised his hands. Constable Sheremetta again drew his firearm and ordered Mr. St. Arnaud to get down on his knees. Instead, Mr. St. Arnaud turned around and started coming back towards Constable Sheremetta who continued to yell at him. Constable Sheremetta observed a white bag in Mr. St. Arnaud's right hand but could not identify what it was. According to Constable Sheremetta, Mr. St. Arnaud started walking towards him and put his arms down by his side with his right hand in his pocket. Constable Sheremetta continued to yell commands but Mr. St. Arnaud did not stop and continued to advance towards Constable Sheremetta at a pace that was faster than a walk but slower than a run. In his first statement,12 Constable Sheremetta noted that as Mr. St. Arnaud approached he uttered words to the effect of "you're going to have to shoot me mother fucker or something like that, come and shoot me fucker or something like that."

Independent of the recollection of Constable Sheremetta, a civilian witness, Mr. Klassen, observed Mr. St. Arnaud come to a stop, raise his hands up in the air, turn around toward the officer and start approaching him at a pace between a walk and a run and "bent".

Constable Sheremetta stated that as Mr. St. Arnaud neared him, he tried to step backwards but slipped and fell onto his back. Constable Sheremetta also stated that he kept his gun pointed towards Mr. St. Arnaud and was yelling "Police! Stop!" to the point that his "throat was hurting so much from yelling, I screamed at the top of my lungs." He described Mr. St. Arnaud as having the scariest look that Constable Sheremetta had never seen, "a look of death [...]." According to Constable Sheremetta, he was still on the ground on his back when he shot Mr. St. Arnaud twice in the chest area from a distance of approximately five feet.

Constable Sheremetta stated that Mr. St. Arnaud kept coming so he shot him a third time in the chest area. Mr. St. Arnaud then dropped straight to the ground.

Constable Erickson was in her police vehicle driving around the opposite side of the courthouse while Constable Sheremetta was pursuing Mr. St. Arnaud on foot. According to Constable Erickson, as she came around the curling rink and drove beside the tennis court and soccer field she heard yelling but could not make out what was said or by whom. She also observed Constable Sheremetta standing with Mr. St. Arnaud "kind of charging back at Constable Sheremetta." Constable Erickson testified that she yelled out her window to let Mr. St. Arnaud know that there was another police officer present. Constable Erickson testified that she observed Constable Sheremetta standing in a police shooting stance and that she saw two muzzle flashes and heard two shots followed by Mr. St. Arnaud advancing on Constable Sheremetta and then dropping to the ground. She estimated that Mr. St. Arnaud was within ten feet of Constable Sheremetta when he fell.

At 1:09:47 a.m., Constable Erickson advised the Prince George Operational Communications Centre that a man was down and immediately thereafter Constable Sheremetta advised that shots had been fired. At 1:10:04 a.m., Constable Erickson also requested that a Vanderhoof RCMP Detachment non-commissioned officer be requested to attend the scene. Finally, at 1:10:10 a.m., she requested that Emergency Health Services be contacted. The Operational Communications Centre called Corporal Jim MacLellan, a senior ranking member of the Vanderhoof RCMP Detachment, Staff Sergeant Rick Kowalewich, the Detachment Commander, and Emergency Health Services to attend.

Various civilian witnesses recalled hearing the gunshots. After seeing Mr. St. Arnaud begin advancing upon Constable Sheremetta, Mr. Klassen reported that he drove down the road looking for a place to turn his vehicle around when he heard two shots in quick succession. He turned around and drove back to the scene. He testified that the other police vehicle had arrived and that he saw two members walking from the street toward Mr. St. Arnaud, who was lying in the field.13 Mr. Klassen then departed, as he believed that Mr. St. Arnaud had surrendered.

Mr. Biggin-Pound stated that after waiting for some time, he thought he heard three gunshots, while Mrs. Biggin-Pound thought the sounds might be a flag flapping. Mr. Nooski testified that after travelling about two blocks north on Burrard Avenue he heard three shots one after another.

After seeing Constable Erickson drive off toward the courthouse, Ms. Isaac reported that she and Mr. Nooski began walking away quickly on Stewart Street to Burrard Avenue and then turned north. They walked up the west side of the street for about two blocks. Ms. Isaac testified that she heard a commotion across the street. It sounded like it was coming from a bushy area behind a church on the east side of Burrard Avenue.

Ms. Isaac described sounds of a fight. She testified that she heard sounds like somebody being kicked repeatedly and all kinds of swearing followed by someone saying "stop, stop" and then "get back here." She then recalled hearing three pops. Ms. Isaac remembered that she had looked at her watch and it read 1:10 a.m. She stated that she then ran home with Mr. Nooski. She went to sleep and, later that day, she called the RCMP to report what she had heard.

I find that the observations of Ms. Isaac in relation to the shouting and fighting that she heard that night are not reliable or relevant to the shooting. She describes the voices she heard as coming from near a church directly across the street from her position. In fact, according to the location both Ms. Isaac and Mr. Nooski recall being at when they heard the gunshots, the shooting happened more than a block away. Additionally, Mr. Nooski indicated that he had not heard any shouting or sounds of fighting prior to the shooting and commented that the crunching of the snow impeded his hearing. Ms. Isaac's observations are also inconsistent with those of Constable Sheremetta, Constable Erickson and Mr. Klassen, none of whom described a physical altercation between Constable Sheremetta and Mr. St. Arnaud.

In discounting Ms. Isaac's evidence on this point, I have the benefit of the Commission investigator's report that upon his attendance at the location where Ms. Isaac and Mr. Nooski say that they heard the gunshots, he determined that the distance was likely too far away to have heard any voices. I therefore conclude that the voices and sounds of a struggle described by Ms. Isaac were unrelated to this event.

The Events Immediately after the Shooting

After the shooting Constable Erickson radioed the Operational Communications Centre and advised that a man was down. Constable Sheremetta radioed that shots had been fired. Shortly thereafter Constable Erickson requested a non-commissioned officer and emergency services personnel urgently. Constable Sheremetta testified that he got up and backed away from Mr. St. Arnaud while Constable Erickson exited her police vehicle and approached him in the field. He recalled Constable Erickson checking to make sure he was alright. He confirmed that he was and stated, "See what he has."14

Constable Erickson testified that Constable Sheremetta was not that close to where Mr. St. Arnaud was lying when she arrived, possibly four or five paces away but did not remember whether he had backed away from Mr. St. Arnaud. In her statement, Constable Erickson noted that when she approached the scene Constable Sheremetta commented, "He kept coming." Constable Erickson circled Mr. St. Arnaud while Constable Sheremetta covered her. She observed that Mr. St. Arnaud was still moving his head and jaw and that he was still breathing. She moved a white plastic bag from Mr. St. Arnaud's right hand and noted that there were pill bottles located near that hand. Pill bottles were later identified and secured near both of his hands. Although no white plastic bag was recovered from the scene, Constable Erickson testified that it was windy and it possibly blew away.

Constable Sheremetta could not stand any longer and he testified that he went down on one knee. He also recalled feeling "really, really cold [...]." Constable Erickson stated that she approached Constable Sheremetta and observed that he did not have a jacket on so she offered to retrieve his jacket from his police vehicle.15 Constable Sheremetta remained alone on the soccer field while Constable Erickson went to his vehicle, which was still parked on the far side of the curling rink, to retrieve his jacket. She was not able to immediately find it and had to return to the soccer field to ask Constable Sheremetta where it was. Constable Erickson returned to Constable Sheremetta's SUV and found the jacket. En route to the SUV, she observed the ambulance arriving at the scene and briefly spoke to the ambulance attendants before continuing.

Medical Assistance

In Constable Erickson's statement given shortly after the shooting she made the following observations,

[...] I could see that the guy was like having, like really laboured breathing, ah, or like just not breathing it was just like [gasps] like ah, sort of, ah, slow intermittent breaths sort of thing, and ah, I circled around [...] and the guy was, by this time like not really breathing, like I kept checking his chest and he, he didn't look as though he was ah, breathing, I could see his mouth like a few times move ah, just his jaw was like, you know, sort of trying to breathe [...] he was moving his jaw [...].

After removing the white bag and looking at his hands, she noted, "I couldn't see him breathing anymore [...]." She did not address the issue in her second statement provided to Sergeant Krebs on January 6, 2005.

In her testimony at the inquest, Constable Erickson responded to cross-examination as follows,

Q. You went up to the body to check it?
A. Yes.
Q. And the man wasn't moving correct?
A. There was just some movement from his jaw.
Q. But – just the last sort of breaths?
A. Yes.

Constable Sheremetta made no observations about Mr. St. Arnaud's condition after the shooting.

At the time of the shooting RCMP policy required the first member on the scene to seek immediate medical assistance,16 which Constable Erickson did. It also required that, if a person cannot be roused by speaking to them or touching them, then that person should be checked for a variety of factors including "irregular breathing" and "injury".17 Neither officer checked for any of the listed factors, including taking Mr. St. Arnaud's pulse.18 However, they both knew of his injuries and, during her safety check, Constable Erickson observed Mr. St. Arnaud having difficulty breathing. Under these circumstances, policy stated, "If you observe any conditions outlined in sec. 2.2, initiate first responder first aid/CPR and seek immediate medical assistance."19 The members failed to initiate first aid/CPR.

It is important to note that Dr. James McNaughton, the pathologist who performed the autopsy of Mr. St. Arnaud, testified that his death was caused by the rapid loss of blood caused by his gunshot wounds and that his death would have occurred anywhere from ten minutes to two hours after he was shot. By this estimation, Mr. St. Arnaud was still alive after Constable Erickson performed her security check, at a time when treatment could have been administered. I also note that Dr. McNaughton expressed the view that the efforts of the police or even a basic ambulance crew would probably not have prolonged Mr. St. Arnaud's life. Notwithstanding, this information was not known by the officers and policy should have been followed.

Finding: Constable Sheremetta and Constable Erickson failed to provide first aid/CPR to Mr. St. Arnaud, as required by policy.

Mr. Drew Hunsaker, one of the two ambulance attendants who attended the scene, testified that they arrived on Stewart Street at 1:24 a.m. and spoke with Constable Erickson who directed them to go to the officer in the soccer field and follow his instructions. From the road he saw "a person laying on the ground in the snow and we could see the constable walking around a fair distance, 20 feet or so, away from the person laying on the ground [...]."

Mr. Hunsaker also testified that Constable Sheremetta directed him to walk to the east of Mr. St. Arnaud because it was a crime scene. He asked Constable Sheremetta what had happened and was told that he had shot Mr. St. Arnaud. This was the first time that the attendants were aware of the nature of the call. At this point the other ambulance attendant, Mr. James Vanderploeg, arrived carrying an oxygen bottle. The attendants approached Mr. St. Arnaud from the east, one following in the footsteps of the other.

Mr. Hunsaker checked Mr. St. Arnaud's breathing, pulse and eye dilation. He questioned Constable Sheremetta as to whether any medical treatment had been administered and was advised that no aid had been given. He testified, "Our policy at that time is if somebody has been down with no artificial respirations or CPR done to them for greater than 15 minutes, that we don't initiate." At approximately 1:30 or 1:35 a.m. he concluded that Mr. St. Arnaud was deceased. As a safety measure, Mr. Vanderploeg conducted a separate examination of Mr. St. Arnaud and arrived at the same conclusion.

Mr. Hunsaker asked Constable Sheremetta if he had been injured and he said no. However, the attendants noticed that the back of Constable Sheremetta's left hand was bleeding. Both attendants backed away from Mr. St. Arnaud and cleaned and dressed Constable Sheremetta's hand. Mr. Hunsaker believed that Constable Sheremetta indicated that the cut may have been caused by the snow. Both ambulance attendants described the snow as crusty and described their steps as breaking through the top layer into softer snow.

After the ambulance attendants had treated Constable Sheremetta, Constable Erickson took him back to her vehicle at his request. She sat in the car with him and he asked her if she had seen what happened and she responded affirmatively. According to her testimony he then asked her what he should do. She further testified that she was aware that it was a best practice to separate witnesses to avoid contamination of their evidence. Accordingly, she consciously chose not to engage in a conversation about the events.

The RCMP Investigation

Staff Sergeant Kowalewich and Corporal MacLellan were both contacted by the Operational Communications Centre at approximately 1:15 a.m. They were advised that a man was down and were requested to attend the location. Staff Sergeant Kowalewich arrived at approximately 1:35 a.m. Corporal MacLellan arrived shortly thereafter and Staff Sergeant Kowalewich instructed him to take Constable Sheremetta to the detachment, seize Constable Sheremetta's duty belt and sidearm and obtain an accounting of the circumstances. Mr. Vanderploeg indicated that the ambulance attendants were asked to leave by one of the supervisors so as not to draw attention to the scene and left at 1:55 a.m.

Corporal MacLellan drove Constable Sheremetta to the detachment arriving at approximately 1:55 a.m. Corporal MacLellan took possession of Constable Sheremetta's duty belt, which included his firearm, pepper spray and ASP baton.

Sergeant Glenn Krebs, the primary investigator on the file and a member of the "E" Division North District Major Crime Unit (MCU), received a call from the Operational Communications Centre at approximately 1:55 a.m. The caller relayed that the matter concerned an officer-involved shooting and requested that he contact the Vanderhoof Detachment for additional information. Sergeant Krebs reached Corporal MacLellan at 1:58 a.m. and received a synopsis of the events after which he requested that Corporal MacLellan obtain a statement from Constable Sheremetta being mindful of the Criminal Code and RCMP Act. Sergeant Krebs also discussed the need for a dog to search the scene and look for a weapon, for scene protection, coroner notification, seizure of the member's footwear, media releases and an exhibit person.

Constable Erickson's notes indicate that she left the scene to go to the detachment at 2:01 a.m. and returned at 2:07 a.m. During her absence Sergeant Gerald Grobmeier,20 who had heard the radio calls and travelled to Vanderhoof from patrolling in the Fraser Lake area, maintained security at the scene. Constable Erickson then prepared her notebook entry on the incident and kept note of people attending the scene. She recorded advising one civilian not to walk down Stewart Street if he did not need to do so and then recorded the time when Constable Fred Muraca came to relieve her at the scene.

At 2:11 a.m. Corporal MacLellan commenced taking an audio/videotaped statement from Constable Sheremetta. The weight to be given to Constable Sheremetta's various statements and testimony is addressed in Appendix I.

After speaking with Corporal MacLellan, Sergeant Krebs contacted other members of the MCU, Constable Vince Foy and Constable Bram Huisman, to assist with the investigation. He then contacted the Operational Communications Centre to obtain copies of all dispatches.

Staff Sergeant Kowalewich briefed Corporal Trevor Beach of the Forensic Identification Section by telephone at 2:17 a.m. He then spoke with Sergeant Krebs and Inspector Kirke Hopkins, the interim Team Commander, and updated them. Sergeant Krebs received confirmation that the tasks assigned to Corporal MacLellan would be undertaken and requested that the scene be secured and a police service dog brought in to assist at the scene as soon as possible.21

At 2:40 a.m. Staff Sergeant Kowalewich arranged for assistance from off-duty members and was able to enlist the aid of Constable Muraca and Corporal Frank Paul to provide scene security at the field and the mall respectively.

Sergeant Krebs spoke with Inspector Hopkins at 2:45 a.m. and provided an update. Inspector Hopkins requested that he be contacted once the briefing note on this file was ready.

At approximately 3:00 a.m. Staff Sergeant Kowalewich arranged for notification of the coroner, a media relations person and a Member Employee Assistance Program agent.22 Corporal Paul arrived at the detachment at about that time and had a meeting with Staff Sergeant Kowalewich and Corporal MacLellan. After the meeting Corporal Paul left to check local businesses for any surveillance footage.

At 3:16 a.m. Constable Muraca attended the field and relieved Constable Erickson from scene security. Constable Erickson returned to the detachment. Constable Muraca's notes contain references to periods of rain and an increasingly strong wind as the early morning hours progressed.

At 3:35 a.m. Constable Phil Sullivan, the police service dog handler from the Prince George RCMP Detachment, arrived in Vanderhoof, received a briefing and headed for the scene to "work the track."

At the same time, Sergeant Krebs, who was still in Prince George, received a package containing the dispatch log and tapes of the radio transmissions from the Operational Communications Centre.

Constable Sheremetta spoke on the telephone with a psychologist at 3:40 a.m. Sometime thereafter Staff Sergeant Kowalewich asked Corporal MacLellan to arrange for Constable Sheremetta to speak with a lawyer. At 4:08 a.m. a message was left at the home of a Prince George attorney, Mr. Brian Gilson, requesting that he call the detachment.

Shortly after 4:10 a.m. Corporal Paul attended the local Tim Horton's restaurant and arranged to have the owner contact him in order to access the surveillance video. He also obtained descriptions of potential witnesses from the employees of the 7-Eleven convenience store.

Sergeant Krebs arrived in Vanderhoof at 4:45 a.m. He prepared a briefing note and at 5:05 a.m. spoke with the Forensic Identification Section members, Corporal Beach and Sergeant Glen Doll. They were provided with brief details including that Constable Sheremetta had been pursuing a suspect in a break and enter investigation, that he had fallen to the ground because of the slippery conditions and that he had fired three shots at the suspect who fell where he was shot.

Corporal MacLellan drove Constable Sheremetta home and seized his boots at 5:30 a.m. Upon returning to the detachment he turned the boots over to Constable Foy, who was designated as the exhibits officer.

Corporal Beach and Sergeant Doll arrived at the crime scene at approximately 5:30 a.m. and began photographing outside of the mall before making their way to the soccer field, while continuing to photograph the area. The Ident Occurrence Report made note of the difficulty posed by the low light conditions. The members surveyed the scene including the paths apparently taken by Constable Sheremetta and Mr. St. Arnaud leading onto the soccer field. Corporal Beach and Sergeant Doll left the soccer field at 6:22 a.m. and returned to the mall where they examined the scene outside the mall, photographing as they went along.

Members of the investigative team met for the first time at 6:15 a.m. and held a briefing until 7:00 a.m. In addition to investigative team members, namely Sergeant Krebs, Constable Huisman and Constable Foy, it appears that the participants included Corporal MacLellan, Staff Sergeant Kowalewich and Corporal Paul. In response to questions posed by the Commission analyst, Corporal MacLellan indicated that he advised members of the MCU at that meeting about the two conflicting versions of how Constable Sheremetta was positioned when he shot Mr. St. Arnaud. During that meeting, the investigative team members also received their assignments and a media release was prepared along with an initial report.

At 7:00 a.m. Corporal Beach and Sergeant Doll attended the detachment and relayed the preliminary results of their investigation to the investigative team, concluding the briefing at 7:17 a.m. In addition, Sergeant Doll noted that Staff Sergeant Kowalewich, Corporal MacLellan and Corporal Paul were in attendance.

Corporal Paul commenced scene security at the mall as of 7:20 a.m. and he continued this task until the end of his shift.

At approximately 7:30 a.m. Corporal Beach and Sergeant Doll returned to the soccer field along with Sergeant Grobmeier. Together with Constable Muraca they entered the field for the purpose of erecting a tent over the scene in order to protect Mr. St. Arnaud's body and provide general cover against the elements. They were joined on the field at intervals by Constables Sullivan and Foy. By 8:00 a.m. all but Corporal Beach and Sergeant Doll left the soccer field, as they began to collect evidence. A few minutes later the wind began blowing the tent away. Constable Muraca returned to the field to help secure the tent and was followed a short time later by Constable Sullivan. The tent, however, was too damaged and as a result it was dismantled and removed.

The coroner arrived at 10:55 a.m., received a briefing from Sergeant Doll and conducted an inspection of the scene. At 12:35 p.m. Mr. St. Arnaud's body was removed from the scene under the supervision of the coroner. Corporal Beach and Sergeant Doll spent the balance of the day securing exhibits, taking measurements and samples, as well as inspecting and photographing the entire scene from the mall to the soccer field. By 1:00 p.m. they were inspecting the roof of the mall and then continued the investigation from the door through which Mr. St. Arnaud exited the mall, backtracking to the pharmacy. During that time they seized a variety of exhibits including blood samples. They concluded their work at 5:00 p.m.

Over the next few days the investigative team identified and interviewed many potential witnesses. Some witnesses were re-interviewed either because of problems with faulty recording equipment or to clarify facts as more information became available.

In addition to the work of the investigative team, Corporal MacLellan assisted with the investigation. On December 20, 2004, he spoke with several witnesses who had seen Mr. St. Arnaud in the hours prior to the break-in. He took brief notes of those discussions and formal statements were later sought by members of the MCU. Corporal MacLellan also seized a bag of drugs discovered by staff members at the pharmacy, which they had found behind a bathroom door in the staff room. His continuation report for that day indicates that at 5:00 p.m., the end of his shift, he met with Constable Sheremetta and requested his notes. Constable Sheremetta advised Corporal MacLellan that he had not made any. Corporal MacLellan also helped Constable Sheremetta with some administrative functions such as ordering a new duty belt, advising him of the Critical Incident Stress Debriefing session,23 and providing him with an application for legal fees payment. Finally, the two officers spoke about Mr. St. Arnaud's flight from the scene and Corporal MacLellan noted, "Cst. Sheremetta still convinced that the suspect jumped off the roof."
On December 20, 2004, Sergeant Krebs updated Superintendent Larry Killaly, who was the officer in charge of the "E" Division Major Crimes Section and one of the Program Managers for the MCUs throughout the division. Sergeant Krebs also met separately with Inspector Leon Van De Walle, another Program Manager for the division MCUs, and Inspector Hopkins, the interim Team Commander, to brief them.

That afternoon Corporal Beach was able to arrange for a helicopter and took aerial photographs of the scene.

On the morning of December 21, 2004, Corporal MacLellan and Staff Sergeant Kowalewich met with the mall manager "to explore the possibility that the suspect had quick access to the roof and may have jumped off as perceived by Cst. Sheremetta." They determined that "[t]here is no quick access to the roof and it would have been virtually impossible for the suspect to have gotten to the roof and jumped after he was seen in the store running thru the mall." They also viewed the mall from the vantage point of where Constable Sheremetta had been waiting in his vehicle and determined that there was a blind spot of approximately eight feet from the exit door to where Mr. St. Arnaud would have been visible to Constable Sheremetta.

Following that meeting Corporal MacLellan returned to the detachment where he received a telephone call from Constable Dan Michaud who had been appointed to the investigative team that day. During that call Corporal MacLellan advised Constable Michaud of the witnesses with whom he had spoken.

At 8:25 a.m. the investigative team held a briefing, which included Inspector Van De Walle.

At 10:00 a.m. that day, Dr. James McNaughton performed an autopsy on Mr. St. Arnaud. Sergeant Doll and Constable Mark Davidson of the Kamloops Serious Crime Unit were in attendance to take photographs and seize exhibits, respectively. Dr. McNaughton determined that Mr. St. Arnaud had suffered three gunshot wounds to the chest, one of which had first passed through his left hand. He also identified a number of lacerations, abrasions and contusions.24 He concluded, "Death is attributed to multiple gunshot wounds to the body with the associated blood loss."

Early that afternoon Inspector Van De Walle met with Ms. Rebecca Gingera regarding her concerns over Sergeant Krebs and Staff Sergeant Kowalewich's handling of the investigation and recorded her comments about Mr. St. Arnaud's activities the evening prior to his death.

At 3:20 p.m. Sergeant Krebs attended the Tim Horton's restaurant and spoke with the manager who knew Mr. St. Arnaud and had viewed the tapes but had not seen Mr. St. Arnaud in them. Sergeant Krebs asked the manager to save the tapes and contact Constable Huisman for copying.

At 4:40 p.m. Inspector Van De Walle met with Staff Sergeant Kowalewich and Inspector Hopkins to discuss the case.

At 7:30 a.m. the following morning, Inspector Van De Walle met with Inspector Hopkins and Superintendent Harris before attending the MCU briefing. Following the briefing Sergeant Krebs met with Mr. Gilson who advised him that he directed Constable Sheremetta not to provide any further statements without counsel.
At noon on December 22, 2004, Ms. Gingera, who had been involved in a relationship with Mr. St. Arnaud and had been out with him the night before he died, spoke with Corporal MacLellan on the telephone. She told him that she wished to cancel her appointment with Sergeant Bruce Ward, another member of the investigative team. Corporal MacLellan's notes indicate that she expressed concern over the police investigating the police and did not want to cooperate with the investigation.

Later that afternoon, Corporal MacLellan attended the Tim Horton's restaurant near the pharmacy and viewed the security tapes.25 His continuation report for that day indicated that he attended at the request of the store owner to help identify Mr. St. Arnaud. He noted "nothing significant" as a result of his review and it appears that he did not seize the tapes.26

Also on December 22, 2004, Inspector Van De Walle spoke with Ms. Delores Young, Mr. St. Arnaud's mother, and listened to her concerns about the investigation. He also promised to update her on the investigation, which he did over the following weeks.

Inspector Van de Walle spoke with Ms. Gingera again on December 24, 2004, but was still unsuccessful in obtaining recordings of Mr. St. Arnaud's telephone messages.

On January 3, 2005, Sergeant Krebs again spoke with Mr. Gilson about obtaining a statement from Constable Sheremetta. Mr. Gilson advised him that one was complete but it was not turned over at that time.
On January 4, 2005, Ms. Gingera turned over to Corporal MacLellan her telephone answering machine, which contained three voice messages from Mr. St. Arnaud, apparently made in the hours leading up to the shooting.

Sergeant Krebs sought to clarify the discrepancies between the versions of the shooting as related by Constable Sheremetta and Constable Erickson. He obtained a statement from Constable Erickson on January 5, 2005.

The toxicological report was prepared on January 5, 2005.

On January 6, 2005, Inspector Van De Walle requested that Constable Sheremetta be re-interviewed. Sergeant Krebs discussed this with Constable Sheremetta's lawyer but there was no agreement on allowing a new interview.

The need to obtain an expert opinion relating to the use of force was addressed by assigning, on January 6, 2005, Constable Huisman the task of contacting an expert. In this first instance the name of Constable Gregg Gillis was noted in the daily log. On January, 18, 2005, Constable Gillis confirmed his availability to assist in the analysis and provided a list of documents that he would require in order to provide an opinion, which he estimated would take two to three weeks. This was the last reference in the investigative material to Constable Gillis, who did not provide an opinion on the use of force.

The autopsy report was completed on January 26, 2005.

On February 2, 2005, after reviewing the data compiled by the forensics investigation, Sergeant Krebs determined that an expert biomechanics opinion may be required to help interpret that evidence relating to the paths, speed and location of Constable Sheremetta and Mr. St. Arnaud. He began contacting outside agencies while trying to find a suitable expert. On February 4, 2005, Staff Sergeant Larry Flath, the new Team Commander, advised Sergeant Krebs that Superintendent Killaly did not feel that it was necessary to outsource this work and that Sergeant Krebs should concentrate his efforts in house.

Sergeant Krebs and Corporal Beach enlisted the assistance of Sergeant James Gallant to prepare a blood stain analysis report on February 8, 2005.

On February 9, 2005, Sergeant Krebs followed up on a previous contact relating to the biomechanics report. He identified an outside expert who indicated that the information required fell into her area of expertise. He was also advised that the expert was unaware of any in-house police resources that could accommodate his request. On February 10, 2005, Staff Sergeant Flath advised Sergeant Krebs of Superintendent Killaly's lack of support for this plan as well as Superintendent Killaly's wish to have a meeting with Sergeant Krebs to discuss the matter.

Also on February 10, 2005, Civilian Member Earl Hall received Constable Sheremetta's firearm and shell casings for analysis.

On February 14, 2005, Sergeant Krebs spoke with Inspector Van De Walle about using the biomechanics expert and received his support.

On February 21, 2005, Sergeant Krebs spoke with Corporal Tim Anctil27 for assistance in obtaining a use of force expert. He was eventually referred to Inspector Booth, who, on March 7, 2005, according to Sergeant Krebs' notes, indicated that he "supported" using Corporal Anctil as the expert. The following day Sergeant Krebs noted that Corporal Anctil had sent an email indicating that he would not be able to assist in the investigation.

On February 23, 2005, Sergeant Krebs met with, amongst others, Superintendent Killaly, Inspector Van De Walle and Staff Sergeant Flath. Sergeant Krebs received authorization to use the biomechanics expert and immediately thereafter contacted the expert to advise that he would forward material for the review.

On March 2, 2005, Sergeant Krebs and Constable Huisman attended Mr. Gilson's office and he provided a typed statement from Constable Sheremetta.

Sergeant Krebs met Sergeant Gallant on April 26, 2005. Sergeant Gallant provided his opinion as to a timeline which, according to Sergeant Krebs' notes, could have had Mr. St. Arnaud standing still for up to a minute before being shot. Sergeant Krebs recognized that it was inconsistent with other evidentiary lines but accepted Sergeant Gallant's report, although not agreeing with it.

On April 27, 2005, Sergeant Krebs noted that based upon the contradictions between the physical evidence as well as the preliminary expert opinions and the statement provided by Constable Sheremetta, specifically in relation to the position from which he shot Mr. St. Arnaud, a charge of obstruction of justice may be warranted. He also noted that if Constable Sheremetta agreed to provide another statement it should be a warned statement.

Later that day Sergeant Krebs met with Superintendent Killaly who, according to Sergeant Krebs' notes,

[...] based on his limited knowledge of the investigation and presentation does not feel the 'warning' is justified [...]. Supt. Killaly feels that circumstances and situation account for inaccuracies in [statement] of Sheremetta and therefore this does not make criminal and no warning required to speak with Sheremetta on the inaccuracies.28

On April 28, 2005, Sergeant Krebs noted a telephone call from Inspector Van De Walle in which the latter undertook to seek a subject matter expert (use of force expert) in "K" and "F" Divisions.29

Sergeant Krebs spoke on May 17, 2005 with Staff Sergeant Peter Sheristan from "K" Division who had been advanced as a candidate to prepare the report. He indicated that he was waiting for approval from his chain of command before committing to undertake preparation of the report. Sergeant Krebs then sought Inspector Van De Walle's approval to bring Staff Sergeant Sheristan into the investigation.

On May 20, 2005, Sergeant Krebs forwarded materials for Staff Sergeant Sheristan's review. However, on June 1, 2005, Staff Sergeant Sheristan informed Sergeant Krebs that he was unable to continue with the analysis due to illness. That same day Sergeant Krebs identified an alternate expert after again speaking with Corporal Anctil. He contacted the Operations Officer for the Surrey RCMP Detachment, Superintendent Ken Gates, who supported using Sergeant Lee Chanin. Sergeant Krebs spoke with Sergeant Chanin the next day and was advised that Sergeant Chanin was able to assist but wanted to speak with Corporal Anctil first. Corporal Anctil recalled that they spoke about the case and that, although it was one of Sergeant Chanin's first cases, "he felt competent in his ability to do it."

On June 3, 2005, Sergeant Krebs placed a request to Inspector Van De Walle and copied Chief Superintendent Al MacIntyre, the "E" Division Deputy Criminal Operations Officer. Sergeant Krebs asked for support in utilizing Sergeant Chanin, which Chief Superintendent MacIntyre immediately provided. That same day Sergeant Krebs forwarded investigative material to Sergeant Chanin for his review.

In July 2005, Sergeant Chanin completed his expert opinion on Constable Sheremetta's use of force.

Expert Witnesses

It is common police investigative practice, when investigating serious matters such as a homicide, to employ a range of forensic techniques with a view to reconstructing from available physical evidence the most likely series of events that led up to the critical incident under investigation. The traditional range of techniques runs the gamut from fingerprint to DNA analysis. The ultimate relevance and weight of these techniques can vary significantly and in some cases they are heavily influenced by the experience of the "expert" who has offered an opinion. The investigative team in this case sought to employ a number of such techniques with varying degrees of success. For reasons that are detailed in the appendices attached hereto, I have discounted the opinion of Sergeant James Gallant, the blood splatter expert;30 Sergeant Lee Chanin, the use of force expert;31 Dr. Rick Parent, the expert on police shootings;32 and Civilian Member Earl Hall, the firearms expert, save for that portion of his opinion in which he identifies the shell casings as coming from Constable Sheremetta's firearm.33 I have accepted the relevance and the opinion of Dr. Gail Thornton, the biomechanics expert34 and Dr. James McNaughton, the pathologist.35

Major Case Management

In order to assess the quality of the RCMP's investigation, it is necessary to understand how it should have been managed. As the investigation into Mr. St. Arnaud's death was a police-involved homicide, it was a "major case" to which the principles of the Major Case Management Model (MCM) applied.

The MCM is "a methodology for managing major incidents which provides accountability, clear goals and objectives, planning, utilization of resources and control over the speed, flow and direction of the investigation." It is designed to ensure a "competent and consistent effort in every investigation." The MCM is managed by the Major Case Management Team (MCMT) illustrated by the "command triangle,"36 which includes the Team Commander (formerly called Team Leader), the Primary Investigator and the File Coordinator.

The Team Commander has "ultimate authority, responsibility and accountability37 for the MCMT, its resources (human and physical) and its mandate." The Primary Investigator controls the "overall investigative process." The File Coordinator is "responsible for the control, supervision, organization and disclosureof the file documentation."

As per RCMP policy,38 the investigation was subject to an Independent Officer Review by Inspector Marlin Degrand, the Officer in Charge of the Terrace RCMP Detachment (since transferred to the RCMP's "K" Division in Alberta). Inspector Degrand had no connection to the Vanderhoof RCMP Detachment or to Constable Sheremetta, and was not involved in the incident or the investigation.

Analysis

Issue: Whether members of the RCMP failed to conduct an adequate investigation into the death of Mr. St. Arnaud.

Adequacy of the Investigation

An adequate investigation in a major case such as a police-involved shooting resulting in death will include: securing and preserving the scene; interviewing all known witnesses and identifying other witnesses to be interviewed who may have material evidence about the event; examining the backgrounds of both the deceased and the RCMP member; obtaining and processing relevant forensic evidence including photographic evidence, non-DNA physical evidence, DNA-related evidence and evidence related to the firearm used in the shooting; canvassing surrounding areas for any further information about the event that may be relevant; and utilizing appropriate experts. The elements of the investigation reviewed below are all relevant to the assessment of the adequacy of the investigation as a whole.

Scene Security

From the outset, it is necessary for first responders to rigorously adhere to the fundamental principles governing all investigations. Securing the scene where the shooting took place should have been a priority; as in any criminal investigation, the preservation of physical evidence is a critical task. However, after ensuring that Mr. St. Arnaud posed no further threat and that Constable Sheremetta was not injured, Constable Erickson left Constable Sheremetta alone at the scene while she twice went to his vehicle to look for his jacket, in each instance leaving the scene for several minutes. As Constable Sheremetta was the subject of the investigation, he should not have been left alone at the scene.

This is not to say that Constable Erickson should not have taken some action to address Constable Sheremetta's exposure to the cold. Her concern was understandable. However, the preferred option would have been to escort Constable Sheremetta to her vehicle where he could keep warm and where she could still maintain visual oversight of the crime scene. Indeed, this is what she later did, after the ambulance attendants had attended the scene and while the officers waited for their supervisors to arrive.

Constable Erickson remained at the scene while Staff Sergeant Kowalewich, Corporal MacLellan and Constable Sheremetta attended the detachment. No explanation was provided as to why, in her capacity as a key witness to the shooting, she was left to provide scene security. She noted that she was relieved briefly at 2:01 a.m. by Sergeant Grobmeier. She returned to the scene at 2:07 a.m. Although her notes were not as detailed as that of Constable Muraca, who eventually took over scene security,39 Constable Erickson did make reference to attendees at the scene.

Constable Muraca relieved Constable Erickson at 3:16 a.m. and took over scene security. His notes amount to a log of all of the comings and goings at the scene, as well as descriptions of vehicles and pedestrians who passed by on the street during the hours that he oversaw the scene.

In this case, it should be recognized that Constable Erickson was a key witness and colleague of Constable Sheremetta. As such, her role in the subsequent investigation ought to have been kept to an absolute minimum. While I recognize the human resource demands in small detachments, key witnesses need to be treated as such and in this case other options were available.40 In any event, there is no evidence in the file that would support that any consideration was given to Constable Erickson's role in the investigation.

Finding: Constable Erickson failed to ensure scene security at the soccer field immediately following the shooting.

Finding: Staff Sergeant Kowalewich should have removed Constable Erickson from the scene at the earliest opportunity, as she was a key eyewitness to the shooting.

Finding: Staff Sergeant Kowalewich should have removed Constable Erickson from the scene at the earliest opportunity, to avoid any real or perceived bias, given her work relationship with Constable Sheremetta.

With respect to scene security at the mall, there is no explanation as to why Corporal Paul did not assume that post until 7:20 a.m. Staff Sergeant Kowalewich noted that he called Corporal Paul in for that purpose, yet it was more than four hours before he undertook that task. Corporal Paul's notes did not provide any details for the delay in commencing security at the mall nor was a log maintained of the individuals coming and going, as was kept by Constable Muraca at the soccer field. I recognize that human resource constraints at small detachments often require prioritizing duties and this may have been the case here. However, the written record does not provide any rationale for the delay. Furthermore, other members had arrived on the scene, and the tasks carried out by Corporal Paul subsequent to the brief investigation for surveillance videos were administrative tasks at the detachment.

Finding: Staff Sergeant Kowalewich failed to ensure scene security at the mall from the earliest opportunity.

Scene Preservation

After the shooting, Constable Erickson approached the scene to assess whether Mr. St. Arnaud posed a threat and then to check on Constable Sheremetta. These were proper actions under the circumstances.
According to one of the ambulance attendants, Mr. Hunsaker, Constable Erickson told him and the other attendant, Mr. Vanderploeg, that it was a crime scene and they should proceed to Constable Sheremetta and "do as he says." Mr. Vanderploeg stated, "I was given instructions by Constable Erickson that it was a crime scene that [sic] to follow the same footsteps as my partner and to get further instructions from the constable who was at the scene [...]." According to their testimony, Constable Sheremetta directed them to approach Mr. St. Arnaud from the east and to try not to disturb the scene any more than necessary. The attendants approached in single file and when leaving the area backtracked so as to minimally disturb the area. Both the ambulance attendants and RCMP members exited the area, which, according to the notebook entries of Constable Erickson and Constable Muraca, remained essentially undisturbed until Corporal Beach and Sergeant Doll arrived.

Mr. Hunsaker testified that he observed Constable Sheremetta walking around about twenty feet from Mr. St. Arnaud's body. Mr. Vanderploeg testified that he observed a lot of footsteps and packed snow around Mr. St. Arnaud.

The efforts of the officers at the soccer field, during the failed attempt to erect a tent, resulted in the contamination of the scene by various officers' footprints. A significant portion of the prints between an area containing an impression in the snow41 to some distance beyond where Mr. St. Arnaud's body lay was obliterated. This area was key to subsequent efforts to analyze the movements of Constable Sheremetta and Mr. St. Arnaud leading up to the fatal shooting. Unfortunately, due to the poor lighting, early photographs were too dark to clearly depict the scene or the footprints of the two men during the final moments of Mr. St. Arnaud's life.

Although the scene ended up being poorly preserved, I find that this was largely due to the deteriorating weather conditions and poor communication between the investigative team and Sergeant Doll and Corporal Beach as to the two versions that had been given as to what position Constable Sheremetta had been in when he shot Mr. St. Arnaud. They were only told of Constable Sheremetta's version at the 7:00 a.m. briefing and I am satisfied that absent the conflicting version their efforts were reasonable and that the ensuing damage to the integrity of the area around Mr. St. Arnaud's body was an unfortunate result of the adverse state of the weather.

During the course of this investigation Sergeant Krebs was asked if anyone had advised the Forensic Identification Section members of the alternate versions of Constable Sheremetta's shooting position, laying versus standing. He responded,

Ident was and is provided an overview briefing of events sufficient for them to conduct a scene examination without contaminating or prejudicing their views prior to entering a scene. In this way Ident can make an approach to a scene a [sic] properly record the evidence which is there rather than consciously or unconsciously collecting evidence to fit a version.

The problem with this explanation is that Sergeant Doll and Corporal Beach were sent out with only one version of events and thereby were not left free of all bias when collecting evidence. They were given one of two possible versions of the actual shooting, which accomplished exactly the scenario Sergeant Krebs claimed he was trying to avoid by not relating Constable Erickson's version of the shooting. It would be speculative to suggest that the forensic investigation would have yielded additional evidence if the forensic investigators had been briefed more fully. However, it seems reasonable that scene preservation may have been treated differently if Sergeant Doll and Corporal Beach were aware of the alternate version of the shooting and the potential significance of that area of the crime scene.

Finding: Sergeant Krebs provided the Forensic Identification Section members with only one of two possible versions of the shooting, which may have resulted in a failure to recognize the significance of that portion of the scene, which was ultimately contaminated by the footprints of other officers.

Forensic Examination of the Shooting Scene

At the site of the shooting, Sergeant Doll and Corporal Beach were able to secure a variety of exhibits and identify the paths taken by Constable Sheremetta and Mr. St. Arnaud except for that portion of the scene that was contaminated during the efforts to erect the tent. They catalogued the evidence recovered, which was later used to prepare the biomechanics and firearms expert reports. However, as noted in the Toronto Police Service's Report,42 no samples were taken of the blood in the snow beside Mr. St. Arnaud's body and as such there are no toxicological reports that identify it as being that of Mr. St. Arnaud. As a matter of best practice, this should have been done.

Sergeant Doll and Corporal MacLellan conducted an examination of the paths taken by Constable Sheremetta and Mr. St. Arnaud leading back to the curling rink where they seized another vial of drugs. They then backtracked to the mall and first examined the roof before moving to the interior of the mall. They again seized exhibits relevant to the break and enter and to Mr. St. Arnaud's flight from the mall including blood samples from a number of locations.

A few days later they were successful in obtaining an aeroplane to conduct an aerial survey of the scene including the mall and soccer field.

The evidence collected was used by both the biomechanics and firearms experts in the preparation of their reports.

Finding: The Forensic Identification Section failed to seize blood samples from the snow adjacent to Mr. St. Arnaud.

Impartiality of the Investigation

RCMP "E" Division policy requires that all deaths of persons in RCMP custody be investigated by a Major Crime Unit. In this case, the North District MCU from Prince George supplemented by members of "E" Division MCU from Vancouver investigated Mr. St. Arnaud's death. None of the MCU members had any substantive connection to Constable Sheremetta or to the Vanderhoof RCMP Detachment. However, Corporal MacLellan's involvement in the investigation must also be assessed in relation to this issue.

On March 21, 2007, the Commission and RCMP "E" Division implemented the Independent Observer Pilot Project (IOPP).43 It is designed to allow for a Commission observer to be involved at the outset of serious or highly sensitive investigations such as police-involved shootings in order to make observations about the impartiality of the investigation. The criteria applied in the IOPP are useful in assessing the impartiality of this investigation. In relation to Corporal MacLellan one aspect of the impartiality assessment stands out: "whether there are any actual or perceived conflicts of interest in terms of the members of the investigative team and those who are the subject of the investigation."

With this in mind and given that Corporal MacLellan was not a member of the MCU but a supervisor of Constable Sheremetta, in the normal course one would expect that his involvement should have been kept to a minimum.

Utilization of Corporal MacLellan in the Investigation

Corporal MacLellan spoke to Sergeant Krebs and, as a result, he was tasked with taking a duty to account statement44 from Constable Sheremetta.

Sergeant Krebs' notebook recorded that at 1:58 a.m. he spoke with the onsite supervisor, Corporal MacLellan, and received an update. He also recorded that he directed Corporal MacLellan to take a statement. As part of this Chair-initiated investigation he was asked to clarify his notebook entry and advised,

[...] my recall is that I was requesting that he speak with his member to provide a 'Duty to Account' being mindful of [the Criminal Code] and RCMP Act as anything provided by the member would/could jeopardize further contact by MCU members during the course of the investigation. I recall this instruction as it was inline [sic] with the additional instruction to seize his duty belt. Actions which should be taken sooner rather than later in investigations such as these. [sic]

In his testimony at the inquest, Corporal MacLellan indicated that he drove Constable Sheremetta back to the detachment with the intention of finding out exactly what had happened and what Constable Sheremetta's recollections of events were. He explained why someone from another detachment was not used to interview Constable Sheremetta.

I was available. There was no one else from another detachment present at the time and I think – my purpose in interviewing him I suppose was to ensure that we obtained a pure version of what the event was before his recollections might be tainted by other – other conversations or discussions he might have with someone else.

He also testified that he had spoken on the telephone with Sergeant Krebs whom he advised of his intention to interview Constable Sheremetta. Staff Sergeant Kowalewich noted that the reason he asked Corporal MacLellan to transport Constable Sheremetta back to the detachment was to obtain an accounting. I am not convinced that any of these members turned their minds to the availability of a member from another detachment. There is no record of any attempt to locate other members; however, according to Constable Erickson, Sergeant Grobmeier was at the scene prior to the commencement of the duty to account statement.

At approximately 2:11 a.m. on the morning of the shooting, Corporal MacLellan commenced taking a duty to account statement from Constable Sheremetta. The recorded portion of the statement failed to set out the parameters under which it was taken; however, it is clear from the record that some discussions took place prior to the videotaped interview. In Constable Sheremetta's second statement received by the RCMP on March 2, 2005, he spoke to this issue,

I spoke with the corporal and was advised that I was required to give an accounting of the night's events and that it would be taped. He made it very clear that this procedure was for employment purposes only with the RCMP and that I had to give an accounting of my actions. The statement was not warned and I was told it was just for police employment purposes.

The duty to account statement is a compulsory statement. This is an important distinction from that of a formal statement taken in the context of a criminal investigation.45 This is because, in general, compelled statements are not admissible in criminal court proceedings.46 It would have been preferable for this to have been clearly set forth at the outset of the interview.47 However, I am satisfied, based upon all the evidence, that Constable Sheremetta's first statement was indeed a duty to account statement in which he was compelled to give an accounting of what had transpired.

I accept Sergeant Krebs' rationale for believing that it was best to obtain such a statement at the earliest opportunity. However, it is not clear that any of the participants gave consideration to the perception of partiality that could arise from having one of Constable Sheremetta's supervisors, with whom there existed a working relationship, take his statement.

I also note that Corporal MacLellan's interview of Constable Erickson, the key witness to the shooting and his subordinate, did not start until 4:25 a.m., some twenty minutes before the arrival of Sergeant Krebs and at a time where a number of non-detachment members were present.

Corporal MacLellan asked leading questions48 in the interviews of both Constable Sheremetta and Constable Erickson. Although inappropriate, I find that the intent was to focus answers on the issues Corporal MacLellan wished to address and was not for any improper purpose. Furthermore, I am satisfied that the nature of the questioning did not affect the reliability of the statements.

Additionally, there are questions about Corporal MacLellan's preparation for the interview of Constable Sheremetta. The statements of Constable Sheremetta and Constable Erickson differed in one key area, the position from which Constable Sheremetta shot Mr. St. Arnaud. This difference was important because it would clearly have affected Constable Sheremetta's tactical vulnerability, a point which he specifically referred to in his statement. Not only would it mean that Constable Sheremetta's option to reposition was compromised but it would have also exposed him to a greater threat in that his ability to defend himself would have been significantly compromised. The discrepancy was also important because it could have called into question the accuracy or credibility of either Constable Sheremetta or Constable Erickson.

In the circumstances of this case it would have been more appropriate to interview Constable Erickson prior to interviewing Constable Sheremetta. Having this contradictory information in advance of Constable Sheremetta's statement would have enabled Corporal MacLellan to pose questions designed to clarify the differing versions during the interview of Constable Sheremetta.

These questions could still have been asked following Constable Erickson's interview but Corporal MacLellan made no effort to reconcile the discrepancy. In fact, during the course of this Chair-initiated complaint investigation Corporal MacLellan provided a statement in which he indicated that he did not view the discrepancy to be problematic given the lack of lighting and different perspectives of the members.

Finding: Sergeant Krebs should have determined the availability of qualified and experienced non-detachment members to take statements from Constables Sheremetta and Erickson.

Finding: Corporal MacLellan failed to adequately prepare for the interview of Constable Sheremetta by first interviewing Constable Erickson.

Finding: Corporal MacLellan failed to identify the purpose of his interview of Constable Sheremetta and in particular to define the statement as a duty to account statement.

Finding: Corporal MacLellan asked leading questions during the interviews of Constable Sheremetta and Constable Erickson which, although not appropriate, did not affect the reliability of the statements.

Finding: Corporal MacLellan failed to re-interview Constable Sheremetta once he discovered the discrepancy between Constable Sheremetta's and Constable Erickson's versions of the shooting.

Despite the fact that he had a supervisory relationship with Constable Sheremetta and was not a member of the MCU, which could impact the perception of the impartiality of the investigation, Corporal MacLellan remained involved during the early stages of the investigation. His notes indicate that he was present at the first briefing of the MCU49 and the subsequent briefing by the Forensic Identification Section. During the days immediately following the shooting he spoke to a number of potential witnesses, seized exhibits and viewed a security video.

Corporal MacLellan even spoke with Constable Sheremetta to clarify how Mr. St. Arnaud exited the mall. This may have been how the Constable became aware that Mr. St. Arnaud was believed to have exited the mall via a back door and not by jumping off the roof as he had originally stated.50

Sergeant Krebs was asked to explain why Corporal MacLellan was used to assist with the investigation given that he was Constable Sheremetta's supervisor and was also assisting him with administrative matters. He responded that members of the MCU did not have a good relationship with Mr. St. Arnaud's family and that in order to obtain Ms. Gingera's recorder, a local member, Corporal MacLellan, was used. He did not mention using Corporal MacLellan in any other manner.

The scant references to Corporal MacLellan in the notes of the MCU members and the fact that Corporal MacLellan duplicated part of the investigation, specifically in reviewing the security tapes from the Tim Horton's restaurant the day after Sergeant Krebs had attended that same location to obtain a copy, lead me to conclude that Corporal MacLellan was involved on his own initiative. The records indicate that members of the MCU returned to Prince George at the end of each day. During their absence from Vanderhoof, calls from the public were received relating to the investigation into Mr. St. Arnaud's death. It appears that Corporal MacLellan took it upon himself to assist. This was far from a best practice and illustrates the need for stronger guidance to RCMP members not assigned to the investigating MCU, both in policy and direction from the investigative team.

Corporal MacLellan was not part of the investigative team that had the responsibility to investigate the circumstances of Mr. St. Arnaud's death. Furthermore, Corporal MacLellan's working relationship with Constable Sheremetta was another reason to minimize any active involvement in the investigation. His conduct had the potential to lead to the inference of a real or perceived bias.

Sergeant Krebs was clearly leading the MCU when the investigation began and should have ensured that detachment personnel were aware of the limitations on their roles in the investigation. There is no evidence to support that he limited the role of non-MCU members in the investigation, the need for which was enhanced by the absence of the MCU from Vanderhoof for significant periods of time.

Finding: Corporal MacLellan was improperly involved in the investigation of Mr. St. Arnaud's death.

Finding: Sergeant Krebs failed to exercise effective control over Corporal MacLellan's role in the investigation after initially using him to take Constable Sheremetta's duty to account statement.

As indicated above, the actions of both Constable Erickson and Corporal MacLellan negatively impacted the perception of impartiality of the investigation. This is not the first time that this issue has arisen in regards to a police involved homicide.

In response to a recommendation made by the Commission following the death of Mr. Ian Bush, the RCMP undertook to develop policy that provides direction to on-scene RCMP members in major cases involving investigation of police conduct, including the need to ensure real and perceived impartiality. This initiative began after Mr. St. Arnaud's death but the initial handling of this crime scene underscores the importance of providing guidance to first-response officers confronted with major cases involving the investigation of other officers. Nonethless, almost a full year has passed since the Commissioner made this commitment and the policy work should be identified as a priority.

Recommendation: The RCMP should act forthwith to implement policy that provides direction to on-scene RCMP members in major cases involving investigation of police conduct, i.e. situations where the police investigate the police, including the need to ensure real and perceived impartiality.

Use of Experts

Bloodstain Pattern Analysis Evidence

The problems identified with respect to the blood stain expert analysis, confirmed by an independent review conducted by the Toronto Police Service, are reviewed in Appendix K. The evidence set out in the expert report was contrary to the two RCMP witnesses as well as the apparent timing of events. The failure of Sergeant Krebs and the MCU to address the timeline discrepancy was a serious oversight. According to Sergeant Gallant, the contextual information provided was summarized as a man was shot during the course of a break-in investigation. Additionally, photographs of the scene were made available.

As part of this review Sergeant Krebs was asked whether Sergeant Gallant had been made aware of the timing issue. He responded that at a meeting on April 26, 2005, he had much discussion with Sergeant Gallant about the latter's conclusions relating to timing. He indicated that he accepted but did not agree with Sergeant Gallant's opinion but included it in the disclosure to the Crown Attorney.

Following the review of Sergeant Gallant's work by the Northwest Regional Forensic Identification Section, Staff Sergeant Forsythe mentioned various limiting factors in terms of providing a specific analysis including amongst other things the lack of information provided to Sergeant Gallant by the police. This latter point speaks to the limitation placed upon experts when insufficient data is provided. This was the responsibility of Sergeant Krebs. It is of note that when the RCMP commissioned the biomechanics report it provided far more comprehensive background information including the statements of both Constable Sheremetta and Constable Erickson.

The review of Sergeant Gallant's work, which was conducted by the Northwest Regional Forensic Identification Section51 made some useful observations in relation to the blood stain analysis. Staff Sergeant Jon Forsythe, the NCO in charge of Northwest Regional Forensic Identification Section, and Staff Sergeant Alain Richard, NCO in charge of Island District Forensic Identification Section, reviewed the reports of both Sergeant Gallant and Sergeant Geoff Ellis, who following the inquest had been assigned to prepare a second opinion on the blood stain evidence. They concluded that Sergeant Gallant failed to take into account all of the limiting factors and went beyond the scope of what was scientifically supported and that "[...] his opinions and conclusions are outside the normal standards of RCMP reporting [...]."

Finding: Sergeant Gallant made erroneous assumptions in arriving at conclusions not scientifically supported by the evidence.

Finding: Sergeant Gallant demonstrated tunnel vision by his reluctance to modify his conclusions when faced with additional information that called his original conclusions into question.

Given that Sergeant Gallant was removed from the Forensic Identification Section, I see no need to make recommendations in relation to him.

Use of Force Expert Report

The process for obtaining a use of force expert entailed a general call out for RCMP members on the expert roster. These members do not work full time as experts; rather, they are primarily assigned to other policing duties and provide expert opinions when time permits. This process meant that different members were engaged in discussions about taking the file only to later report that they did not have the time available to undertake the task. The first expert assigned was unable to complete the task because of illness and Sergeant Lee Chanin was ultimately chosen to complete it.

Constable Gillis was the first member contacted to provide an opinion. Despite indicating his availability as of January 18, 2005, he was not used to prepare the report. In response to questions posed by the Commission during this investigation, Constable Gillis indicated that although he initially agreed to work on the file he was later unable to do so because of the increased demands of his regularly assigned duties. He added that he neither reviewed any investigative material or other writings related to the matter nor provided any formal or informal opinions thereon. He stated that no person sought to change him as the subject matter expert and he never had any dealings with Sergeant Chanin, who eventually authored the report.

Corporal Anctil, who was described as the unofficial head of the use of force experts in "E" Division, was questioned as to his involvement in the selection process for the use of force expert. He advised that he was asked if he could assist but did not have the time and declined. He could not find any notes that might help specify when the request was made or what he did to assist in finding an expert. He explained that he forwarded an email to a group of approximately eight regular members who also provided expert opinions when time permits. Sergeant Chanin responded to the request and advised that he would be able to handle the matter but first wanted to speak with Corporal Anctil.

Neither member provided any notes relating to their conversation but Corporal Anctil recalled that he briefed Sergeant Chanin who felt that he was capable of preparing the expert opinion.

Although the subsequent request to Inspector Van De Walle and Chief Superintendent MacIntyre was not standard practice, it was apparently made to alert managers about the potential pitfalls of using Sergeant Chanin. Sergeant Krebs' request read,

This morning (3rd), Chanin called to say he was prepared to take on this investigation and has spoken with Cpl. Tim Anctil who will assist if necessary. Chanin wanted to inform, that although he has all of the necessary training and experience to be qualified as an expert as SME – Use of Force, he has not been qualified. Chanin has been qualified in the courts as an expert in other areas. Further to that Chanin has prepared only one expert report which was used in court however he was not required to give evidence on this report.

...

Chanin shares the same concern as myself in so far as two weeks down the road, management reads his name or discovers the aforementioned and raises concerns or requires us to start the process all over again with someone more qualified/recognized.

The appointment process raises two separate issues. First, the hit and miss approach to the appointment of use of force experts can lead to a perception that the investigators were expert shopping; that is to say trying to utilize an expert most likely to provide a favourable opinion. This problem could be disposed of by ensuring that the pool of experts is sufficiently large to meet the demands of major investigations and by establishing a selection process that does not identify potential experts only to have them decline to work on the file for various reasons, as happened here. It should also be noted that the time from identifying the need for a use of force expert to actually engaging one was five months.

The Commissioner's Final Report noted that the RCMP was working toward increasing the number of "permanent use of force experts" as well as establishing a program that will develop these experts and streamline the current process. This acknowledgement of the need to improve this system is a positive first step; however, the details of the program are insufficient to allow me to determine whether it will have the desired effect.

Second, the need to seek clearance from more senior officers to use Sergeant Chanin in the role of use of force expert also speaks to the inadequacy of the current system. Given that this case concerned a police-involved homicide with discrepancies in the eye-witness evidence, it warranted the use of an experienced expert with top of the line qualifications. Sergeant Chanin was acknowledged as lacking experience in the preparation of these types of reports and this case was not suitable for someone with such limited experience.

While it appears from the relevant material that there was no other expert available to handle the matter, this speaks to the inadequate numbers of experts and cannot be used to justify using a member who lacked the level of experience required for a serious case such as this.

Finding: The selection process for use of force experts gives rise to the possibility of real or perceived bias.

Finding: There was an excessive delay in appointing the use of force expert due to insufficient resources.

Finding: The RCMP failed to appoint a use of force expert with sufficient experience to handle a serious case dealing with a police-involved homicide.

Recommendation: The RCMP should train a sufficiently large pool of full-time use of force experts to ensure qualified and experienced experts are available in a timely fashion to deal with major cases.

Recommendation: The RCMP should streamline its appointment process for use of force experts and ensure transparency by establishing a set protocol for appointments.

The Investigational Timeline

A review of the investigation reveals that the brunt of the field investigation, including interviews and forensic seizures, was completed over the first 72 hours following the shooting.52 The bulk of physical evidence seized was forwarded for analysis (toxicological, etc.) within that 72-hour period.53

Expert opinions were sought in a timely fashion except that there was a significant delay of more than five months in obtaining a use of force expert. This type of expertise was an important area for the investigation and it should have been completed in a more expeditious manner. The RCMP's explanation for this cites resource shortfalls, which are now being addressed.

After conducting an independent review of the investigation, Inspector Degrand concluded that the investigation was carried out professionally.

On September 12, 2005, the RCMP submitted a Report to Crown Counsel to determine whether or not charges against Constable Sheremetta were appropriate.

Finding: The investigation was carried out in a timely manner except for the delay in selecting a use of force expert.

Major Case Management

The structure and primary responsibilities of the members of the team triangle are described above and in Appendix O. Inspector Hopkins was the interim Team Commander prior to Staff Sergeant Flath assuming that role. Sergeant Krebs was the Primary Investigator and Constable Huisman was the File Coordinator. Inspector Van De Walle, one of the Program Managers for the MCUs throughout British Columbia, was assigned to oversee the investigation. Additionally, Superintendent Killaly occupied a position above Inspector Van De Walle and, although he had less direct involvement than Inspector Van De Walle, he exerted some influence over Sergeant Krebs. Neither Superintendent Killaly's nor Inspector Van De Walle's involvement was captured in the Major Case Management policy.

None of the members involved in this investigation were accredited as called for in RCMP policy. The RCMP has explained that at the time of the investigation, "E" Division certification procedures were less than a year old and the training process was ongoing. This meant that a full complement of accredited individuals was not yet available to conduct investigations. That shortfall has now been remedied and there are more accredited officers in "E" Division than investigative positions, which should ensure adequate availability in future cases.

Inspector Hopkins was the interim Team Commander and was involved in meetings from the outset of the investigation and for months thereafter, long after Staff Sergeant Flath, his successor, had become involved in the investigation.

Staff Sergeant Flath returned from leave and began attending briefings on January 6, 2005. He noted that prior to that time Inspector Van De Walle had dealt directly with Sergeant Krebs, who he believed was the acting Team Commander during his absence. This is contrary to the view of others who identified Inspector Hopkins as the interim Team Commander. However, Staff Sergeant Flath only advised Inspector Van De Walle and Inspector Hopkins that he was taking over as Team Commander on February 16, 2005. Staff Sergeant Flath's notes reveal that he was being actively updated on the status of the investigation but do not demonstrate that he had "overall control, responsibility and accountability for the direction speed and flow of the case [...]."54

Inspector Van De Walle was actively involved in the investigation. He was regularly briefed, maintained contact with Ms. Young and Ms. Gingera and assisted in obtaining a use of force expert.

Superintendent Killaly was also periodically briefed on this file and eventually authorized the biomechanics report. As noted above, he also had discussions about the type of statement that should be sought from Constable Sheremetta. He later explained that Sergeant Krebs was not seeking his permission as to how to conduct the investigation but only his opinion on that point. However, I note that after their discussions, Sergeant Krebs decided to forestall obtaining a statement and to again review the matter with legal counsel who had originally concurred with his desire to obtain a warned statement from Constable Sheremetta. In the end, Constable Sheremetta did not consent to provide an additional statement.

The Major Case Management approach was not utilized effectively in this investigation. The leadership expected by the Team Commander was not exhibited and Sergeant Krebs was largely left to his own devices in managing areas of the investigation that should have been the Team Commander's responsibility, in effect, assuming dual roles. One of the benefits of utilizing the command triangle is having multiple players with clearly defined roles performing checks and balances.

It appears that Inspector Van De Walle also filled the void left by the lack of leadership from the Team Commander. However, the level of his involvement in the investigation seems to exceed the role that he was originally assigned. This may have been a response to the weakness in the command triangle but it does little for the perception of the investigation when the roles described in RCMP operational policy are unofficially redistributed.

The record keeping on this file by senior members was also lacking. In the case of Inspector Hopkins and Superintendent Killaly, no records were kept despite a clear enunciation in policy that "[t]he decision-making processes within [Major Case Management] must be preserved. Individual managers, supervisors and investigators must make complete notes documenting their participation, rationale, time, direction and decisions."55

The failure to adhere to the Major Case Management model undoubtedly contributed to the inadequacies identified in this investigation.

It is important to note that the Major Case Management model was quite new at the time of this investigation and the divisional infrastructure was clearly not sufficiently advanced to support its employment in this instance. I contrast this investigation with that of the investigation into the death of Mr. Ian Bush, who died on October 29, 2005. That investigation was also carried out by the North District MCU. I found that investigation to have been highly professional and to exemplify the best practices for major crime investigations. Given the improvement in the quality of that later investigation, which was conducted after the Major Case Management model was more fully implemented, I see no need to make recommendations on this issue.

Findings: The Major Case Management model was not properly applied in this investigation:

the team members were not accredited, as required by policy;

Inspector Hopkins and Staff Sergeant Flath in their role as Team Commander did not exercise overall control or assume responsibility and accountability for the direction, speed and flow of the case, as required by policy;

after using Corporal MacLellan to assist in the investigation, in a limited capacity, Sergeant Krebs failed to restrict Corporal MacLellan's subsequent involvement;

Inspector Hopkins and Superintendent Killaly failed to keep notes of their involvement, as required by policy;

Superintendent Killaly's and Inspector Van De Walle's involvement in the investigation was not clearly defined by the Major Case Management policy and helped create ambiguity as to the operational line management responsibility for the investigation; and

the investigative team failed to conduct a critical debrief, as required by policy.

Recommendation: The Major Case Management policy should be modified to clarify the distinction between those managers and supervisors providing operational decision-making and guidance and those providing administrative support.

On February 28, 2007, Inspector Degrand who conducted the Independent Officer Review of the investigation completed his concluding report. Amongst other things, he found that the investigation into the shooting was "very thorough". He also made two recommendations:

I recommend that Consideration should be given by the Division and H.Q. policy centers to examining this section of Operational Manual Policy (OM re-write, 4.1) and the possible modification of the same to reflect a requirement to carry a C.E.W. [conducted energy weapon]56 (Taser) while on general policing and like duties when a member has been trained and the same is available to them.

...

That consideration be given to invoking a practice of follow-up review by RCMP witnesses rendering opinion evidence when it becomes clear to the investigator that the opinion being rendered is in-consistent with the fact set present in the case at hand. That such a review entail, if necessary, the redrafting of a second, follow-up report, outlining the change in fact set being reviewed and subsequent modification of opinion, if that is the case, by the witness. This would enable judicial bodies to be aware of both the original opinion, subsequent re-examination based upon any identified issues, and subsequent opinions and allow for the witness to maintain a higher level of credibility than to be challenged on the witness stand and modify their opinions at that point.

This latter point is a reasonable approach to address the inadequacies in relaying information to experts, as was the case with Sergeant Gallant.

The first recommendation, dealing with mandatory arming of trained members with a CEW, if one is available, is an issue that bears no relation to the issues in this file. Inspector Degrand commented that Constable Sheremetta chose not to carry a CEW that evening even though he was trained and one was available. However, he also acknowledged that the CEW was not a suitable use of force option in cases where lethal force is appropriate without a back-up officer being present and able to use lethal force if needed. This case was not an appropriate one for the RCMP to be promoting increased arming of members with a CEW.

As previously noted the Toronto Police Service conducted its own review of the RCMP investigation and identified some of the same issues noted above. Some of the recommendations made in that report are relevant to my findings and I have adopted one of those recommendations, as modified below.

Recommendation: The RCMP should ensure that the primary investigators involved in police investigating police conduct brief and continually update the forensic identification officers that are examining the scene to ensure that they are aware of all relevant information to assist in their examination.

Issue: Whether members of the RCMP improperly entered into a situation with Mr. St. Arnaud that resulted in his death.

At the time that Constable Sheremetta entered into his pursuit of Mr. St. Arnaud, he was subject to the duty provisions of the RCMP Act, in particular paragraph 18(a),

18. It is the duty of members who are peace officers, subject to the orders of the Commissioner,

(a) to perform all duties that are assigned to peace officers in relation to the preservation of the peace, the prevention of crime and of offences against the laws of Canada and the laws in force in any province in which they may be employed, and the apprehension of criminals and offenders and others who may be lawfully taken into custody...

Both constables responded to and were investigating a possible break and enter. Mr. St. Arnaud was first seen inside the pharmacy and then fleeing toward the rear of the mall where Constable Sheremetta was positioned. Constable Sheremetta witnessed Mr. St. Arnaud running from the rear of the mall and attempted to apprehend him. The facts establish that the officers were lawfully performing their duties when they commenced the break and enter investigation and that there were reasonable grounds for Constable Sheremetta to detain Mr. St. Arnaud.

Finding: The members entered into their interactions with Mr. St. Arnaud lawfully and were duty-bound to do so.

Issue: Whether a member of the RCMP improperly discharged his firearm during the incident.

I now turn to an analysis of Constable Sheremetta's conduct in relation to the shooting of Mr. St. Arnaud. My preceding review of the RCMP investigation into Mr. St. Arnaud's death provides an outline of the evidence, which I am satisfied should be considered in assessing that conduct, as well as explaining which evidence I do not accept as reliable or relevant. I will now review the resulting evidentiary record against the applicable legislation and policy.

Subsection 25(1) of the Criminal Code authorizes a police officer who is acting in the administration or enforcement of the law to use as much force as is necessary for that purpose. Section 34(2) of the Criminal Code authorizes any person who is unlawfully assaulted to use force that causes death or grievous bodily harm in self-defence to repel the assault. To rely on this protection, the person must have a reasonable apprehension of death or grievous bodily harm and must also believe that he cannot otherwise preserve himself from death or grievous bodily harm.

RCMP members are trained to use the Incident Management/Intervention Model (IM/IM)57 as an aid to determine both how to intervene in incidents and when force may be necessary. There are seven underlying principles upon which the IM/IM is based,

The primary objective of any intervention is public safety.

Police officer safety is essential to public safety.

The intervention model must always be applied in the context of a careful assessment of risk.

Risk assessment must be taken into account: the likelihood and extent of life loss, injury and damage to property.

Risk assessment is a continuous process and risk management must evolve as situations change.

It is incumbent upon the member to perform a risk assessment, first determining which of the five behaviour classifications (cooperative, non-cooperative, resistant, combative and potential to cause grievous bodily harm or death) the subject's actions fall into. Consideration must also be given to the situational factors specific to each incident. These include weather conditions, subject size in relation to the member, presence of weapons, number of subjects and of police, as well as a host of other incident-specific considerations.

The IM/IM sets out various response or intervention options specific to the member's determination of subject behaviour in conjunction with the assessment of the situational factors. The subject behaviour is characterized as being co-operative, non-cooperative, resistant, combative or as displaying the potential to cause death or grievous bodily harm. Intervention options include officer presence, verbal intervention, empty hand control, intermediate devices, impact weapons, lethal force and tactical repositioning. RCMP members are trained to utilize one level of intervention higher than the demonstrated resistance level of the person they are dealing with.

In this case, Constable Sheremetta's statement indicates that he was aware of the following situational factors. These factors are the starting point of the IM/IM analysis. He knew that an alarm had been activated at the pharmacy. En route to the scene he was advised that the alarm originated in the dispensary area and upon arrival learned that there was indeed at least one male suspect still within the pharmacy. Additionally, environmental factors were identified including the icy/slippery conditions.

Constable Sheremetta's duty to account statement also revealed his perception of the risk factors at play that night. He believed that Mr. St. Arnaud had jumped off the roof of the mall.59 Mr. St. Arnaud would not comply with his commands and continued to flee after being ordered to stop. He related that Mr. St. Arnaud was taller than he was at about six feet tall.60

Constable Sheremetta related that as the pursuit unfolded, Mr. St. Arnaud repeatedly looked back at him and continued to ignore his commands to stop. Most importantly, he observed Mr. St. Arnaud running one-handed, in other words keeping his right hand in his pocket. Constable Sheremetta expressed concern about not knowing where his back-up, Constable Erickson, was and during the final portions of the interaction he was keenly aware that he had to deal with Mr. St. Arnaud alone, at night-in the dark, on an isolated soccer field.

The accounts of Constable Sheremetta and Constable Erickson, as the only two witnesses to the shooting, must be examined in order to determine the actual events. First, as I have previously stated, eye-witness accounts of events are not always reliable. In this case, I am aware that Constable Sheremetta's perceptions were likely affected by his heightened state of anxiety. He misperceived Mr. St. Arnaud as having jumped off the roof of the mall and he misjudged Mr. St. Arnaud to be about six feet tall when in fact he was two and one-half inches shorter.

Second, Constable Erickson's recollection of events was not perfect either. She stated that she heard only two shots and saw only two muzzle flashes.61 While this aspect of her observations proved to be incorrect, she recounted Mr. St. Arnaud's approach upon Constable Sheremetta in much the same way as Mr. Klassen and Constable Sheremetta himself. The lighting from the street was limited and she acknowledged that she could not identify the gun in Constable Sheremetta's hand. However, she did notice the white bag carried by Mr. St. Arnaud. Additionally, she spoke with great clarity as to Constable Sheremetta's position at the moment of the shooting, describing him as standing with legs apart and arms extended in front of him. All of this was possible because, after she passed the tennis court, she had an unobstructed view of the participants who were located in front and to the left of where she was driving.

Third, Constable Erickson recounted seeing Mr. St. Arnaud fall to the ground after the final shot. I conclude that Constable Erickson heard and saw the third shot. This would mean that she observed one of the two preceding shots that were described as being shot in quick succession, which may explain why she did not differentiate the two shots.

While it initially looked like Mr. St. Arnaud was going to surrender, this quickly changed when he lowered his hands and began charging toward Constable Sheremetta. Mr. St. Arnaud ignored Constable Sheremetta's shouted commands to stop and get down on his knees and responded by telling Constable Sheremetta that "[...] you're going to have to shoot me mother fucker [...]." Constable Sheremetta also observed that Mr. St. Arnaud's face was covered in blood. Constable Sheremetta then fell down.

The recountings of the many witnesses interviewed reflect the frailties of human powers of observation and recollection. Some of their testimony, given without any improper motive, is contradicted by other witnesses or the physical evidence. I am satisfied that Constable Sheremetta fell down, based on his assertion in his first statement and the depression in the snow identified in the forensic investigation of Sergeant Doll and Corporal Beach. I also note that the ground was universally described as being slippery and that Constable Sheremetta had slipped and almost fallen after exiting his police vehicle and Mr. St. Arnaud had fallen to the ground during the pursuit. The observation of the ambulance attendants supports the proposition that Constable Sheremetta fell. They observed a cut on his left hand, which may have been caused by having scraped it on the icy snow. The only time that Constable Sheremetta stated that he fell was immediately prior to the shooting. I, therefore, find that Constable Sheremetta having fallen down regained his feet and fired from a standing position as observed by Constable Erickson.

From the early stages of their interaction Mr. St. Arnaud refused to comply with the commands issued by Constable Sheremetta. By the time that Mr. St. Arnaud began approaching Constable Sheremetta he was at least combative. I find that his words and actions demonstrated his intent to assault Constable Sheremetta and escape custody. The key issue is whether Mr. St. Arnaud posed a threat of grievous bodily harm or death. The critical observation noted by Constable Sheremetta was Mr. St. Arnaud's repeated placement of his hands in his pocket. I find that based upon the evidence in its entirety, these actions would be wholly consistent with Mr. St. Arnaud trying to safeguard the drugs that he had stolen from the pharmacy.62

It must also be remembered that Mr. St. Arnaud's blood alcohol level and various witnesses support a finding that he suffered from a significant degree of intoxication. Furthermore, Mr. St. Arnaud had already instigated one physical altercation earlier in the evening with an individual significantly larger than he was. In fact, the bar doorman who broke up the fight estimated that the other combatant outweighed Mr. St. Arnaud by a hundred pounds. While this information was not known to Constable Sheremetta, it is of assistance in assessing the likelihood of the events unfolding as described by him.

The factors relied upon by Constable Sheremetta included the fact that during the final seconds he was alone and unsure of his partner's location. He perceived Mr. St. Arnaud to be bigger than he was.63 The lighting was poor and the conditions slippery. Mr. St. Arnaud's utterances and facial expressions also demonstrated aggression and his words could be perceived as meaning that he contemplated a fight that would entail grievous bodily harm or death.64 Constable Sheremetta's risk assessment was heightened by the uncertainty of Mr. St. Arnaud's purpose in putting his hand in his pocket and he feared that he might have a hidden weapon. This is the key factor that elevates the risk assessment to the highest levels.65 During his duty to account statement, Constable Sheremetta stated that this caused him to fear for his life. By all accounts Mr. St. Arnaud advanced upon Constable Sheremetta while the latter had his firearm pointed directly at him.

Lastly, at the point he was shot, Mr. St. Arnaud was only five feet away from Constable Sheremetta.

This highlights the dynamic nature of this incident. The five-foot distance between Mr. St. Arnaud and Constable Sheremetta could have been covered in a fraction of a second. The time frame from Mr. St. Arnaud coming to a stop, appearing to surrender and then charging back at Constable Sheremetta was estimated by the biomechanics evidence to be in the range of five to eight seconds. This did not leave time for sober second thought. Constable Sheremetta was called upon to make a decision in that instant.

It is important to note that this case is like many faced by peace officers performing their duties, namely a dynamic event that required decisive action on the part of the member. There has been much judicial commentary on this point and it certainly applies in this case.

It is one thing to have the time in a trial over several days to reconstruct and examine the events which took place on the evening of August 14th. It is another to be a policeman in the middle of an emergency charged with a duty to take action and with precious little time to minutely dissect the significance of the events, or to reflect calmly upon the decisions to be taken.66

Having regard to all the evidence, I find Constable Sheremetta's apprehension that Mr. St. Arnaud posed a threat of grievous bodily harm or death to be reasonable.

According to the IM/IM, in these circumstances the intervention options available included tactical repositioning and verbal intervention, both of which are available throughout any encounter, as well as the use of lethal force. Constable Sheremetta attempted verbal intervention throughout the incident without effect.67

He tried to reposition by backing away from Mr. St. Arnaud but fell. Lastly, as Mr. St. Arnaud closed in on him, Constable Sheremetta used lethal force, firing three shots at Mr. St. Arnaud. This response was reasonable given the perceived threat.

Finding: Constable Sheremetta shot Mr. St. Arnaud in self-defence after reasonably perceiving that Mr. St. Arnaud posed a threat of grievous bodily harm or death and believing that he could not otherwise preserve himself from grievous bodily harm or death other than by using deadly force.

Having considered the complaint, I hereby submit my Interim Report in accordance with paragraph 45.42(3)(a) of the RCMP Act.

_______________________________
Paul E. Kennedy
Chair

1 File No. PC-2006-1532. See website: Final Report on Chair-Initiated Complaint into the Shooting Death of Ian Bush.

2 See Appendix A for a condensed timeline of the events related to this incident and Appendix B for a list of RCMP members and others involved in the incident and investigation.

3 For the purposes of this report, all ranks are as held at the time of the events being described. Subsequently many of the members involved have either retired or been promoted.

4 The contradictory descriptions of the position from which Constable Sheremetta shot Mr. St. Arnaud are assessed in detail later in this report.

5 Dr. McNaughton reported Mr. St. Arnaud's weight as 86.4 kilograms at the time of the autopsy, including the weight of his wet clothing.

6 This figure appears to have come from Constable Sheremetta's testimony at the inquest, which referred to his weight on that date, January 23, 2007, and not at the time of the shooting more than two years earlier.

7 The toxicology report recorded a blood alcohol level of 200 mgs% (200 milligrams of alcohol in 100 millilitres of blood), an amount which is two and one-half times the legal limit for driving. At the inquest Dr. McNaughton described this as a significant amount of alcohol, which was enough to demonstrate outward signs of intoxication, perhaps even quite pronounced signs. The report also indicated that Mr. St. Arnaud did not have any drugs in his system other than acetaminophen, an over-the-counter pain medication.

9 For clarity's sake and given that his identity is not in dispute, "the man" observed will be identified as Mr. St. Arnaud for the balance of the narrative, although the participants did not know his identity at that time.

10 A short time later, after the bus arrived and Mr. Thiessen dropped off his passenger, he departed the scene.

11 During testimony at the inquest, the alley was identified as being the drive between the courthouse and the curling rink.

12 This was the first account given by Constable Sheremetta shortly after the shooting. It was audio/videotaped by Corporal MacLellan.

13 Mr. Klassen's reference to the two officers approaching Mr. St. Arnaud from the street does not accord with the evidence of either officer nor does it appear to be consistent with the evidence as a whole in relation to the shooting and immediate post-shooting events. I believe that this evidence was Mr. Klassen's best recollection of the events but that it is demonstrative of the frailty of eye witness accounts.

14 There is no record of Constable Erickson confirming that she heard this statement.

15 Constable Sheremetta stated in his duty to account statement that he asked Constable Erickson to retrieve his jacket.

20 The relevant material did not include any notes or statements from Sergeant Grobmeier.

21 After it was determined that Mr. St. Arnaud had died, the original call for a police dog had been cancelled.

22 The Member Employee Assistance Program is a confidential counselling program, similar to those used by large organizations and in other branches of government. In this case, Critical Incident Stress Debriefing sessions were made available to the various personnel involved in this incident.

23 Constable Sheremetta telephoned Corporal MacLellan at 7:30 p.m. and advised him that he would not be attending the counselling session.

25 The position of the cameras did not present a view of the scene of the break-in or of the route taken by Mr. St. Arnaud during his attempt to escape.

26 In fact, it appears that only the video surveillance tapes from the nearby 7-Eleven were seized. The file did not contain an explanation as to why. Under the circumstances, it would have been prudent to seize them so that MCU members could assess the tapes themselves rather than relying upon others, i.e. Corporal MacLellan or the store manager. Additionally, the tapes could have proved beneficial in identifying potential witnesses.

27 Corporal Anctil was described as "the unofficial head of the 'Use of Force' experts for British Columbia" by Sergeant Chanin who was the member finally assigned to prepare the use of force report.

28 No further record was found relating to attempts to make a statement and it appears that Constable Sheremetta was not prepared to provide one.

39 Her notes read as though she immediately began recording what she remembered of the incident and also made notes of any observations relating to scene security as they arose.

40 For example, Sergeant Grobmeier was on the scene at an early stage but there is no clear record of what duties he assumed.

41 This impression was considered by investigators to be consistent with the location and marks that what would be expected if Constable Sheremetta had fallen, as he indicated in his duty to account statement.

42 On January 15, 2008 the RCMP requested the Toronto Police Service to conduct an external independent review of the death of Mr. St. Arnaud and to comment on whether a thorough, professional and unbiased investigation had been conducted by the RCMP.

43 A description of the project may be found in Appendix P. The project is now a full-time program within "E" Division and may be expanded to include other divisions.

56 The term conducted energy weapon (CEW) is used by the RCMP to describe a group of weapons that may incapacitate or cause pain to a subject by discharging an electric shock. These devices are also known collectively as conducted energy devices or stun guns. The Taser is a brand name for the CEW used by the RCMP.

57 This model is a comprehensive guide to aid members in identifying appropriate intervention techniques when dealing with any type of civilian interaction. A graphical depiction of the model is contained in Appendix R.

58 This was also referred to in RCMP policy, Operational Manual III.2.C.

59 Although this assumption was later determined to be erroneous, I am satisfied that Constable Sheremetta held this belief during the pursuit of Mr. St. Arnaud, especially given that he immediately radioed this observation to Constable Erickson.

60 In fact, Mr. St. Arnaud was five feet nine and one-half inches tall, an inch shorter than Constable Sheremetta, at five feet ten and one-half inches tall. I accept that this was Constable Sheremetta's perception, one that I attribute to his heightened fear as the event unfolded. Constable Sheremetta provided this opinion shortly after the shooting during the duty to account statement and I am satisfied that he held that belief during his pursuit of Mr. St. Arnaud.

61 The next closest observer, Mr. Klassen, also maintained that he only heard two shots.

62 The types of drugs found upon Mr. St. Arnaud speak to the lack of sophistication and planning of the break-in. The drugs included medication designed to treat high blood pressure and schizophrenia. This is consistent with the spontaneity of this crime.

63RCMP members are trained to apply AIM when utilizing force. AIM is an acronym for Ability/Intent/Means. Before utilizing force, a member should be able to identify all three elements of AIM. Constable Sheremetta's observations relating to Mr. St. Arnaud's stature and physical effort, such as jumping off of the roof, supported his assessment that Mr. St. Arnaud had the "ability" to harm him. While these observations were ultimately proven to be inaccurate, I am satisfied that Mr. St. Arnaud posed an actual physical threat and that Constable Sheremetta believed that he did.

64 These factors are indicative of Mr. St. Arnaud's "intent" to fight Constable Sheremetta.

65 These observations led Constable Sheremetta to believe that Mr. St. Arnaud was carrying a weapon and thereby had the "means" to inflict grievous bodily harm or death. The critical issue is the reasonableness of Constable Sheremetta's belief. Mr. St. Arnaud's actions could reasonably lead an objective observer to conclude that he had a hidden weapon, although this proved not to be the case.